THE  LIBRARY 

OF 
THE  UNIVERSITY 

OF  CALIFORNIA 
RIVERSIDE 


STATE   GOVERNMENT 

IN   THE 

UNITED   STATES 


THE  MACMILLAN  COMPANY 

NBW  YORK   •    BOSTON   •    CHICAGO   •    DALLAS 
ATLANTA   •    SAN   FRANCISCO 

MACMILLAN  &  CO.,  LIMITKD 

LONDON   •    BOMBAY  •    CALCUTTA 
MELBOURNE 

THE  MACMILLAN  CO.  OF  CANADA.  LTD. 

TORONTO 


STATE   GOVERNMENT 


IN  THE 


UNITED   STATES 


BY 


p 

ARTHUR   NV  HOLCOMBE 

ASSISTANT  PROFESSOR  OF  GOVERNMENT 
IN  HARVARD  UNIVERSITY 


gorfc 

THE   MACMILLAN   COMPANY 
1920 

All  rights  reserved 


COPYRIGHT,  1916, 
BY  THE  M  ACM  ILL  AN  COMPANY. 


Set  up  and  electrotyped.    Published  December,  1916. 


Nodnoatj 

J.  8.  Gushing  Co.  —  Berwick  &  Smith  Co. 
Norwood,  Mass.,  U.S.A. 


TO 

MY  WIFE 


"  No  government  can  now  expect  to  be  permanent  unless  it 
guarantees  progress  as  well  as  order ;  nor  can  it  continue  really 
to  secure  order  unless  it  promotes  progress." 

J.  S.  MILL  :  The  French  Revolution  and  its  Assailants. 


PREFACE 

STATE  GOVERNMENT  in  the  United  States  is  a  subject  on  which 
many  books  might  be  written.  This  book  is  designed  to  furnish 
a  critical  analysis  of  the  principles  of  state  government  in  the 
United  States.  Beginning  with  a  statement  of  the  principles 
upon  which  the  governments  of  the  original  states  were  estab- 
lished, it  explains  how  the  original  forms  of  government  have 
developed  in  response  to  changing  conditions,  how  the  present 
state  governments  are  meeting  present  needs,  and  concludes 
with  a  brief  consideration  of  some  of  the  contemporary  plans 
for  further  reform.  Why  should  we  change  our  form  of  gov- 
ernment? Has  the  time  come  for  discarding  the  eighteenth 
century  doctrine  of  the  division  of  powers  ?  These  are  some 
of  the  more  fundamental  questions  to  which  the  book  attempts 
to  give  an  answer.  But  the  book  is  not  solely  concerned  with 
the  political  philosophy  of  American  state  government.  It  also 
treats  of  the  more  practical  problems  arising  out  of  the  growth 
of  the  functions  of  the  modern  state  and  the  increase  of  its 
administrative  activities. 

For  the  convenience  of  those  readers  who  may  wish  to  pursue 
further  the  study  of  contemporary  state  government,  I  have 
prepared  a  bibliographical  appendix,  containing  a  selected  list 
of  the  most  useful  titles.  References  cited  in  the  text  or  in  the 
footnotes  are,  for  the  most  part,  omitted  from  this  list.  It  has 
not  seemed  necessary  to  include  either  in  the  text  or  elsewhere 
much  statistical  matter  relating  to  the  forms  of  government, 
such  as  tables  of  the  numbers  and  tenure  of  members  of  state 
legislatures,  or  to  the  conduct  of  administration,  such  as  tables 
of  enlistments  in  the  state  militia  or  of  salient  features  in  in- 
dustrial or  labor  legislation.  Such  information  is  readily  obtain- 
able in  various  well-known  publications,  notably  in  the  American 
Year  Book,  published  annually  since  1910. 


viii  PREFACE 

I  have  many  personal  debts  to  acknowledge.  To  secretaries 
of  state  and  other  officials  in  all  the  states  I  am  deeply  indebted 
for  prompt  and  courteous  responses  to  many  requests  for  offi- 
cial publications.  To  certain  officers  of  the  Associated  Harvard 
Clubs,  and  to  secretaries  and  members  of  Harvard  Clubs  in  all 
parts  of  the  country,  I  am  indebted  for  painstaking  cooperation 
in  procuring  information  concerning  the  working  of  state  gov- 
ernment, especially  of  election  laws,  corrupt  practices  acts,  and 
rules  of  procedure  in  legislative  bodies,  and  for  the  supply  of 
publications  by  local  civic  organizations.  To  President  Lowell 
of  Harvard,  to  my  colleagues  in  the  Department  of  Govern- 
ment, Professors  Hart,  Munro,  and  Mcllwain,  to  Professor  Felix 
Frankfurter  of  the  Harvard  Law  School,  to  Professor  Lewis  J. 
Johnson  of  the  Harvard  Graduate  School  of  Applied  Science,  to 
former  Lieutenant-Governor  Robert  Luce  of  Massachusetts,  and 
to  Mr.  Hector  M.  Holmes  of  the  Massachusetts  Bar,  each  of 
whom  has  kindly  read  a  portion  of  the  proofs  and  made  many 
helpful  suggestions,  I  am  under  the  greatest  obligations.  I  am 
also  greatly  indebted  to  Mr.  G.  W.  Robinson,  Secretary  of  the 
Harvard  Graduate  School  of  Arts  and  Sciences,  for  vigilant 
help  in  the  preparation  of  my  manuscript  for  the  press.  It 
may  be  needless  to  add  that  none  of  these  gentlemen  is  respon- 
sible for  the  imperfections  of  my  book. 

A.  N.  HOLCOMBE. 

CAMBRIDGE,  MASSACHUSETTS, 
November  3,  1916. 


CONTENTS 


PART  I 
INTRODUCTION 

CHAPTER  PAGE 

I.    THE  NATION  AND  THE  STATES 3 

The  sovereignty  of  the  nation 3 

The  distribution  of  powers 7 

The  powers  of  the  states 12 

The  importance  of  state  government 17 


PART   II 

THE  ORIGIN   AND   DEVELOPMENT   OF  THE   STATE 
GOVERNMENTS 

II.    THE  ORIGINAL  PRINCIPLES  OF  STATE  GOVERNMENT     ...  21 

The  doctrine  of  natural  rights 22 

The  idea  of  liberty 24 

Popular  sovereignty 28 

The  doctrine  of  the  social  compact 30 

The  right  of  revolution 31 

The  reign  of  law 34 

The  republican  form  of  government 36 

III.    THE  ORIGINAL  FORMS  OF  STATE  GOVERNMENT     ....  40 

The  adoption  of  the  original  constitutions 40 

Reservation  of  civil  rights  to  the  people 42 

The  right  to  vote 44 

The  division  of  powers 47 

Effective  divisions  of  powers 51 

Ineffective  divisions  of  powers 53 

The  censorial  system 56 

Appeals  to  the  people 58 

The  doctrine  of  checks  and  balances 60 

Special  privileges  for  property 65 

General  character  of  original  state  governments         ...  68 
iz 


x  CONTENTS 

CHAPTER  PAGB 

IV.    THE  REFORMATION   OF  STATE  GOVERNMENT          ....  73 

The  beginning  of  reform 74 

The  reform  of  the  censorial  system 75 

Manhood  suffrage 79 

Reaction  against  manhood  suffrage 81 

Woman  suffrage 85 

Reform  of  the  bicameral  system 88 

Direct  popular  election  of  executives  and  judges       ...  89 

The  constitutional  convention 92 

Popular  control  of  constitutional  revision  and  amendment          .  95 

Development  of  the  party  system 99 

Summary 104 

V.    THE  REDIVISION  OF  POWERS 106 

Reaction  against  system  of  legislative  supremacy       .        .         .  106 

The  executive  veto 110 

The  judicial  veto 114 

Constitutional  limitations  on  legislative  powers  ....  119 

Growth  of  power  of  constitutional  convention     ....  123 

Growth  of  power  of  electorate 129 

Municipal  home  rule 130 

The  state-wide  referendum 132 

Direct  legislation  by  the  people 135 

The  recall 136 

Growth  of  power  of  political  parties 137 

Summary 139 

PART   III 

THE   WORKING   OF   THE    STATE   GOVERNMENTS 

VI.    THE  STATE  ELECTORATES 143 

Effect  of  suffrage  qualifications  on  size  of  electorates         .         .  143 

The  number  of  registered  voters 146 

Effect  of  suffrage  qualifications  on  character  of  government      .  150 

Effect  of  woman  suffrage 152 

The  theory  of  the  franchise 155 

The  organization  of  the  electorate 158 

Defects  of  the  system  of  electoral  districts          ....  160 

Majority  v.  plurality  elections     . 162 

VII.    THE  POLITICAL  PARTY 165 

Legal  definitions  of  party 165 

Party  organization  :  conventions 167 

Party  organization  :  committees 169 

Organization  of  Socialist  party 172 

Test  of  party  affiliation 173 


CONTENTS  ri 

CHAPTER  PACK 

The  bipartisan  system 177 

Character  of  system 179 

Working  of  convention  system 182 

The  party  machine 184 

Failure  of  convention  system 186 

Working  of  the  direct  primary 188 

Effect  on  party  organization 193 

Other  effects  of  the  direct  primary 195 

Further  reform  of  nominating  methods 198 

Further  reform  of  party  organization 202 

VIII.    THE  CONDUCT  OF  ELECTIONS 205 

The  official  ballot 205 

Massachusetts  v.  New  York  ballot 208 

Actual  conduct  of  elections 213 

Registration 215 

The  campaign 218 

Corrupt  practices  legislation  in  England 221 

Difficulties  in  regulating  use  of  money  in  America     .         .         .  224 

American  corrupt  practices  acts 227 

Working  of  the  corrupt  practices  acts 233 

Further  regulation  of  the  use  of  money 236 

IX.    THE  STATE  LEGISLATURES 240 

The  bicameral  system 241 

Methods  of  legislative  apportionment 242 

Working  of  methods  of  apportionment 244 

Methods  of  legislative  procedure 248 

The  speakership 252 

The  system  of  committees 253 

The  Massachusetts  committee  system 253 

The  normal  committee  system 256 

The  New  York  committee  system 259 

Working  of  methods  of  procedure 261 

Working  of  bicameral  system 264 

Further  reform  of  legislative  methods 267 

Classification  of  work  of  legislatures 268 

Further  limitation  of  legislative  powers 272 

Regulation  of  the  lobby 274 

Outlook  for  legislative  reform 278 

X.     THE  STATE  EXECUTIVES 280 

The  disorganization  of  administration 281 

Tendency  towards  administrative  reorganization         .        .        .  285 

The  militia 287 

Education 289 

Charities  and  corrections     ...                ....  292 


xii  CONTENTS 

CHAPTER  PAGE 

Public  health  administration 296 

Labor  law  administration 300 

Agriculture 301 

Public  works 303 

Supervision  of  corporations 305 

State  expenditures 308 

State  revenues  and  tax  administration 310 

The  original  executive  offices 315 

Present  disorganization  of  state  administration  .         .        .         .317 

Types  of  departmental  organization 319 

Need  for  further  administrative  reform 326 

The  relation  between  the  executive  and  the  legislature      .        .  327 

The  executive  veto 327 

Appropriations  and  finance 331 

The  power  of  appointment 335 

Civil  service  reform 338 

The  power  of  impeachment 342 

The  recall 343 

XI.    THE  STATE  JUDICIARY 345 

The  administration  of  justice 346 

The  development  of  the  law 347 

The  organization  of  the  courts 349 

The  forms  of  procedure 352 

Judicial  review  of  the  constitutionality  of  legislation  .         .         .  355 

Effect  of  the  judicial  veto 358 

Due  process  of  law 360 

The  rule  of  reason 362 

Criticism  of  the  rule  of  reason 368 

Judicial  review  of  the  validity  of  legislative  procedure        .         .  372 

Reform  of  the  judicial  veto 374 

Development  of  the  idea  of  liberty 378 

Conclusion 380 

Judicial  control  of  administration 381 

Working  of  judicial  control  of  administration      ....  384 

Distinction  between  discretionary  and  ministerial  acts        .         .  388 

Reprieves  and  pardons 392 

XII.    THE  CONSTITUTIONAL  CONVENTION 394 

Organization  and  procedure  of  conventions         ....  395 

Working  of  the  convention  system 398 

XIII.    DIRECT  LEGISLATION  BY  THE  ELECTORATES 401 

The  test  of  direct  legislation 402 

Working  of  the  compulsory  constitutional  referendum       .         .  404 

Reform  of  constitutional  referendum 408 


CONTENTS  xiii 

PAGB 

Working  of  optional  referendum  on  legislative  enactments        .  412 

Emergency  legislation 415 

The  question  of  signatures 418 

Official  bulletins  of  information 421 

Optional  v.  compulsory  referendum 424 

Working  of  direct  popular  initiative 428 

Theoretical  objections  to  initiative 432 

Improvement  of  procedure  for  direct  legislation         .         .        .  437 

Limitation  of  legislative  powers  of  electorates    ....  441 


PART   IV 

CONCLUSION 

XIV.  THE  FURTHER  REFORM  OF  STATE  GOVERNMENT  ....  447 

(/)     The  commission  plan 449 

(it)     The  Socialist  plan 455 

(iit)     The  Oregon  plan 465 

(iv)     The  outlook  for  further  reform 477 

APPENDIX.    A   SELECTED   LIST  OF   REFERENCES   FOR  THE  FURTHER 

STUDY  OF  STATE  GOVERNMENT 481 

INDEX  .  .  487 


CHAPTER  I 
THE  NATION  AND  THE  STATES 

A  STATE  is  usually  denned  as  a  political  body  or  body  politic.1 
A  body  politic  differs  from  other  bodies  of  people  by  the  purposes 
of  its  organization  and  the  powers  with  which  it  is  endowed. 
The  purposes  of  its  organization  are  well  put  in  the  preamble  to 
the  Constitution  of  the  United  States.  They  are :  to  form  a  more 
perfect  union  of  the  people  concerned,  establish  justice,  insure 
domestic  tranquillity,  provide  for  the  common  defense,  promote 
the  general  welfare,  and  secure  the  blessings  of  liberty  to  the 
people  of  the  body  politic  and  their  posterity.  The  powers 
which  may  be  vested  in  a  body  politic  extend  to  a  complete  con- 
trol over  the  lives,  liberty,  and  property  of  the  people  thereof. 
No  body  of  people  except  a  body  politic  may  possess  such  un- 
limited authority,  although  unlimited  authority  is  not  neces- 
sarily possessed  by  every  body  politic.  When  unlimited  or  abso- 
lute political  authority  is  possessed  by  a  state,  it  is  a  sovereign 
state  or  sovereignty. 

THE  SOVEREIGNTY  OF  THE  NATION 

The  states  of  the  American  Union  are  not  states  in  the  sense 
of  being  sovereign  states  or  sovereignties.  This  proposition  was 
long  disputed.  The  most  eminent  statesmen  and  political  scien- 
tists were  to  be  found  on  each  side  of  the  discussion.  The  issue 
was  finally  decided  only  after  an  appeal  to  arms.  It  was  thus 
settled  that  the  people  of  a  particular  state  do  not  possess  sov- 
ereign powers.  As  Abraham  Lincoln  has  said:  "Our  states 
have  neither  more  nor  less  power  than  that  reserved  to  them  in 

1  For  a  definition  of  the  term,  "body  politic,"  as  understood  at  the  Revolution, 
see  the  Preamble  to  the  Constitution  of  the  Commonwealth  of  Massachusetts, 
1780,  in  Thorpe,  Federal  and  Stale  Constitutions,  iii,  pp.  1888-9. 

3 


4  STATE  GOVERNMENT  IN  UNITED   STATES 

the  Union  by  the  Constitution,  none  of  them  ever  having  been 
a  state  out  of  the  Union."  l  Their  place  in  the  Union  is  a  sub- 
ordinate one,  for,  as  Lincoln  pointed  out,  "The  Union  is  older 
than  any  of  the  states,  and  in  fact  it  created  them  as  states." 
Whatever  may  have  been  the  case  when  Lincoln  wrote  these 
words,  there  is  now  no  doubt  of  the  soundness  of  his  views. 
The  people  of  the  whole  United  States  are  the  only  people 
possessing  sovereignty  in  the  United  States. 

The  principle  of  the  sovereignty  of  the  people  of  the  United 
States  has  been  misunderstood  because  of  the  peculiar  division 
of  political  power  between  the  federal  government  and  the  govern- 
ments of  the  several  states.  The  federal  government  possesses 
those  powers  which  have  been  granted  to  it  by  the  people  of  the 
United  States  either  expressly  in  the  Federal  Constitution  or  by 
a  reasonable  implication  therefrom,  plus  the  power  to  make  all 
laws  which  are  necessary  and  proper  for  carrying  into  execution 
the  foregoing  powers.  Of  the  remaining  powers  of  government, 
the  Federal  Constitution  attempts  to  make  a  summary  disposi- 
tion in  the  following  terms:  "The  powers  not  delegated  to  the 
United  States  by  the  Constitution,  nor  prohibited  by  it  to  the 
states,  are  reserved  to  the  states,  respectively,  or  to  the  people."  2 

The  ambiguity  of  this  statement  long  served  to  cloak  with  a 
garment  of  legality  the  most  contradictory  doctrines  concerning 
the  respective  powers  of  the  federal  and  state  governments.  For 
example,  has  a  state  the  right  to  secede  from  the  Union?  The 
Constitution  does  not  expressly  say.  If  the  Constitution  neither 
delegates  to  the  federal  government  the  power  to  compel  a 
state  to  remain  in  the  Union,  nor  prohibits  to  the  states  the 
power  to  withdraw  from  the  Union,  the  right  of  secession,  that 

1  See  A.  Lincoln,  Special  Message  to  Congress,  July  4,  1861.  This  statement  is 
not  literally  true,  though  true  in  substance,  for  North  Carolina,  Rhode  Island, 
Vermont,  and  Texas  have  been  temporarily  states  outside  of  the  Union.  The  first 
two  were  out  of  the  Union  because  they  delayed  the  ratification  of  the  Constitu- 
tion of  1787  until  after  the  "more  perfect  union"  had  been  established  in  1789. 
The  last  two  were  out  of  the  Union  because  Congress  could  not  agree  sooner  to 
their  admission.  Each  was  admitted,  however,  not  by  means  of  a  treaty  between 
the  government  of  the  Union  and  that  of  an  independent  state,  but  by  means  of 
an  ordinary  act  or  resolution  of  Congress.  None  of  the  thirteen  original  states 
was  ever  an  independent  state  before  the  formation  of  the  Union,  and  all  other 
states  upon  admission  acquired  the  same  constitutional  status. 

z  See  Constitution  of  the  United  States,  art.  x  of  the  Amendments. 


THE  NATION  AND  THE  STATES  5 

is  to  say,  the  power  to  terminate  the  Union,  must  be  reserved 
either  to  the  states,  respectively,  or  to  the  people.  But  to  which  ? 
The  Constitution  does  not  say.  When  secession  was  actually 
attempted,  the  persons  seeking  to  withdraw  from  the  Union, 
upon  forming  a  constitution  for  their  confederacy,  revised  this 
distributory  clause  for  the  purpose  of  giving  clearer  expression 
to  their  peculiar  view  of  the  relation  that  should  obtain  between 
the  states  and  the  Union.  Their  rendering  was  as  follows : 
"The  powers  not  delegated  to  the  Confederate  States  by  the 
Constitution,  nor  prohibited  by  it  to  the  States,  are  reserved  to 
the  States,  respectively,  or  to  the  people  thereof."  Thus,  by 
the  addition  of  the  one  word  "thereof,"  they  reserved  all  powers 
not  delegated  to  the  confederacy  to  the  people  of  the  states 
respectively.1  Certainly  the  tenth  amendment  to  the  Consti- 
tution of  the  United  States  was  not  intended  thus  to  transfer 
to  the  people  of  the  several  states  all  powers  not  delegated  by 
the  people  of  the  United  States  to  the  federal  government.  On 
the  contrary,  the  framers  of  that  amendment  must  have  intended 
to  reserve  a  portion  of  the  powers  not  delegated  either  to  the 
federal  government  or  to  the  governments  of  the  several  states 
for  future  use,  in  case  of  need,  by  the  people  of  the  United  States 
themselves.  If  that  had  not  been  their  intention,  the  closing 
words  of  the  distributory  clause,  "or  to  the  people,"  would  have 
been  superfluous.  But  what  was  the  extent  of  these  reserva- 
tions? The  Constitution  does  not  say. 

In  most  cases  this  question  may  not  be  of  much  practical  im- 
portance. In  a  few,  however,  it  might  become  of  great  practical 
importance.  Thus  Congress  must  call  a  convention  to  revise 
the  Federal  Constitution  upon  demand  of  two- thirds  of  the  states. 
But  the  Constitution  does  not  say  whether  Congress,  in  calling 
a  constitutional  convention,  shall  be  bound  by  the  rules  govern- 
ing the  organization  and  procedure  of  the  Convention  of  1787, 
or  shall  have  power  to  determine  for  itself  how  a  fresh  conven- 
tion shall  be  organized  and  what  rules  of  procedure  it  shall  adopt. 
If  any  state  should  claim  a  right  to  be  represented  therein  by  a 
delegation  consisting  of  any  number  of  members  it  should  please, 
and  to  have  the  vote  of  its  delegation  counted  as  a  unit  equal 
in  importance  to  that  of  the  delegation  of  any  other  state,  the 

1  See  Confederate  Constitution,  art.  vi,  par.  6. 


6  STATE   GOVERNMENT  IN  UNITED  STATES 

Constitution  could  not  be  cited  either  in  express  affirmation  or 
in  denial  of  that  claim.  This  question  could  not  be  settled  by 
means  of  a  constitutional  amendment,  if  a  majority  of  the 
smaller  states  were  to  insist  upon  maintaining  equality  of 
representation  in  federal  constitutional  conventions,  and  a  ma- 
jority of  the  larger  states  were  to  insist  upon  representation 
according  to  the  method  employed  in  the  electoral  college. 
It  manifestly  could  not  be  settled  by  means  of  a  constitu- 
tional convention.  This  question  might  seem,  therefore,  to  be 
as  great  a  constitutional  puzzle  as  was  the  question  of  secession. 
The  preamble  to  the  Constitution  of  the  United  States  de- 
clares one  of  the  purposes  of  the  people  to  be  to  establish  a  more 
perfect  union.  This  must  mean  a  union  more  perfect  than  that 
formed  under  the  Articles  of  Confederation  and  Perpetual  Union, 
framed  in  1 7  7  7  and  finally  adopted  in  1 78 1 .  The  perpetual  union 
of  1781,  however,  was  terminated  on  April  30,  1789,  when  George 
Washington  took  the  oath  of  office  as  president  of  the  United 
States  under  the  Constitution  of  1787.  This  second  constitution 
provided  for  the  establishment  of  the  "more  perfect"  union  on 
the  ruins  of  the  old,  if  nine  of  the  thirteen  states  should  agree 
thereto.  In  fact  eleven  agreed  in  season  to  participate  in  the 
inauguration  of  President  Washington.  The  other  two  were 
temporarily  left  to  continue  under  the  Articles  of  Confederation 
or  shift  for  themselves.  Now  if  the  "  perpetual  union  "  of  1781 
could  thus  be  broken  up  by  nine  or  eleven  states,  how  much  more 
perfect  must  the  union  of  1789  be  in  order  that  no  majority  of 
states,  however  large,  may  have  power  to  exclude  a  minority, 
and  in  order  that  any  majority,  however  small,  may  have  power 
to  coerce  a  minority  from  secession?  The  Constitution  gives 
no  answer.  This  question  could  not  be  settled  by  the  regular 
methods  of  constitutional  interpretation,  nor  by  public  opinion 
without  an  appeal  to  arms.  The  result  of  that  appeal  to  arms 
was  to  settle,  not  only  the  disputed  doctrine  of  secession,  but  the 
whole  problem  of  the  relation  between  the  federal  government  and 
the  governments  of  the  states.  It  was  thereby  settled  that  the 
people  of  the  United  States,  and  not  those  of  the  individual 
states,  are  the  final  judges  of  the  extent  of  their  own  powers; 
in  short,  that  the  United  States  is  not  a  confederacy,  but  a 
nation. 


THE  NATION  AND  THE  STATES  7 

THE  DISTRIBUTION  OF  POWERS 

The  ambiguous  tenth  amendment  may  now  be  restated  as 
follows :  The  powers  not  delegated  to  the  federal  government  by 
the  people  of  the  United  States,  nor  prohibited  by  them  to  the 
people  of  the  states,  are  reserved  to  the  people  of  the  states, 
respectively,  or  to  the  sovereign  people  of  the  United  States. 
Of  the  powers  so  reserved,  those  exercised  by  the  people  of  the 
several  states  before  the  formation  of  the  more  perfect  union 
of  1789  are  presumably  still  reserved  to  them,  if  not  necessary 
and  proper  for  the  maintenance  of  the  sovereignty  of  the  people 
of  the  United  States.  All  other  powers,  including  those  pro- 
hibited both  to  the  federal  government  and  to  the  governments 
of  the  states,  are  reserved  to  the  people  of  the  United  States. 
Whenever  doubt  arises  concerning  the  application  of  this  principle 
to  particular  cases,  the  true  rule  of  interpretation  is  that  stated 
by  Lincoln :  "This  relative  matter  of  national  power  and  states' 
rights,  as  a  principle,  is  no  other  than  the  principle  of  generality 
and  locality.  Whatever  concerns  the  whole  should  be  confided 
to  the  whole,  to  the  general  government,  while  what  concerns 
only  the  state  should  be  left  exclusively  to  the  state."  The  duty 
of  interpretation  rests  primarily  with  the  officers  of  the  federal 
government,  that  is,  with  Congress,  the  President,  or  the  Supreme 
Court,  according  to  the  nature  of  the  case ;  but  ultimately  the 
decision  must  depend  for  its  validity  upon  the  consent  of  the 
people  of  the  United  States.  The  power  of  public  opinion,  the 
opinion  of  the  nation,  must  finally  determine  the  status  and  func- 
tions of  the  organs  of  local  government,  including  therewith  the 
governments  of  the  states  and  the  people  thereof. 

The  sovereignty  of  the  people  of  the  United  States  is,  there- 
fore, unimpaired  by  the  peculiar  distribution  of  powers  between 
the  federal  and  state  governments  by  the  Constitution  of  1787. 
The  states  are  a  species  of  local  government  with  limited,  though 
not  always  accurately  denned,  powers.  The  limits  between  the 
powers  of  the  states  and  those  of  the  United  States  are  con- 
stantly being  more  accurately  denned,  as  cases  of  actual  doubt 
arise,  by  the  proper  organs  of  the  federal  government,  generally  by 
the  Supreme  Court,  and  may  ultimately  be  determined  in  cases  of 
persistent  doubt  by  the  people  of  the  United  States  through  the 


8          STATE  GOVERNMENT  IN  UNITED  STATES 

process  of  amendment  to  the  Federal  Constitution.  It  is  this 
power  of  interpreting  the  Federal  Constitution,  vested  in  the 
first  instance  in  the  federal  government  and  ultimately  in  the 
people  of  the  Union,  which  is  the  final  proof  of  national  sover- 
eignty.1 The  states,  therefore,  must  recognize  the  Federal 
Constitution,  and  the  laws  of  the  United  States  which  may  be 
made  in  pursuance  thereof,  and  all  treaties  made  under  the 
authority  of  the  United  States,  as  the  supreme  law  of  the  land ; 
and  the  judges  in  every  state  are  bound  thereby,  anything  in  the 
constitution  or  laws  of  any  state  to  the  contrary  notwithstand- 
ing.2 Indeed  not  only  the  judges  but  also  the  members  of  the 
several  state  legislatures  and  all  executive  officers  of  the  states 
are  required  to  take  oath  or  make  affirmation  to  support  the 
Constitution  of  the  United  States.3 

The  people  of  the  several  states  are  subject  to  the  sovereignty 
of  the  people  of  the  nation,  but  the  people  of  each  state  are 
equal  to  the  people  of  any  other  state  before  the  law  of  the 
Federal  Constitution.  Congress  has  power  to  admit  new  states 
to  the  Union,  and  there  is  no  limit  to  the  number  or  character  of 
the  new  states  that  may  be  admitted,  provided  that  their  govern- 
ments are  republican  in  form,  except  that  no  new  state  may  be 
formed  within  the  jurisdiction  of  any  other  state,  and  no  state 
may  be  formed  by  the  junction  of  two  or  more  states  or  parts  of 
states,  without  the  consent  of  the  legislatures  of  the  states  con- 
cerned.4 Congress  may  also  impose  conditions  upon  the  ad- 
mission of  new  states,  in  addition  to  those  imposed  upon  the 
existing  states  by  the  Federal  Constitution,  but,  unless  these 
conditions  are  imposed  in  the  form  of  constitutional  amendments 
and  are  accepted  by  the  people  of  the  United  States,  thus  apply- 
ing to  all  states  alike,  there  is  no  practical  means  by  which  they 
may  be  enforced.  For  example,  Congress  required  New  Mexico 
and  Arizona  to  amend  the  constitutions  under  which  they  sought 
admission  to  the  Union  in  1911,  but  the  latter  state,  once  ad- 
mitted, promptly  reinserted  in  its  constitution  the  forbidden 
clause  providing  for  the  recall  of  judges  by  the  people.  Like- 

1  Cf.,  J.  C.  Calhoun,  Disquisition  on  Government  and  Discourse  on  the  Constitution 
and  Government  of  the  United  States,  passim. 

2  Constitution  of  the  United  States,  vi.  2. 

8  Ibid.,  vi.  3.  4  Ibid.,  iv.  3,  i. 


THE  NATION  AND  THE   STATES  9 

wise  in  1907  Congress.required  Oklahoma,  as  the  conditions  of  ad- 
mission, to  respect  the  political  equality  of  negroes  and  also  certain 
special  privileges  of  Indians  inhabiting  the  former  Indian  Terri- 
tory, but  in  1910  the  people  of  Oklahoma  adopted  a  constitutional 
amendment  designed  to  restrict  negro  suffrage.  They  could 
doubtless  violate  their  pledges  with  regard  to  the  treatment  of 
Indians  with  equal  impunity.  In  1895  Congress  required  Utah, 
as  a  condition  of  admission,  to  abolish  the  institution  of  polyg- 
amy, but  since  the  admission  of  Utah,  Congress  has  possessed 
no  more  power  to  prevent  the  reestablishment  of  polygamy  in 
that  state  than  to  prevent  its  establishment  in  any  other  state 
of  the  Union.  The  people  of  a  state  may  be  subjected  to  any 
humiliation  in  order  to  gain  admission  to  the  Union,  but  once 
within  the  sacred  edifice,  they  become  endowed  with  all  the  rights 
and  privileges  possessed  by  the  people  of  any  of  their  fellow  states. 
The  states  of  the  Union  are  not  equal  in  influence  upon  the 
government  of  the  Union,  but  within  the  sphere  reserved  to  the 
states,  respectively,  each  state  is  the  peer  of  any  of  the  others. 
For  the  exercise  of  the  powers  falling  within  their  sphere,  the 
governments  of  the  states  are  responsible  to  the  people  thereof, 
subject  to  the  limitations  hereafter  to  be  enumerated.  The 
people  of  the  United  States  have  their  own  government,  the 
government  of  the  Union,  and  in  the  main  are  not  dependent 
upon  the  state  governments  for  the  execution  of  their  general 
will.  The  spheres  of  the  federal  government  and  of  the  govern- 
ments of  the  states  are  separate  and  distinct.  For  certain  special 
purposes,  however,  the  people  of  the  states  and  the  state  govern- 
ments are  required  to  act  as  agents  of  the  people  of  the  Union. 
Thus  the  members  of  the  Congress  of  the  United  States  must  be 
chosen  by  the  people  of  the  several  states  at  the  times  and  places 
and  in  the  manner  prescribed  by  Congress,  and  in  the  absence  of 
federal  legislation  concerning  such  elections,  the  state  legis- 
latures must  make  the  necessary  regulations  for  themselves. 
The  states  must  also  appoint,  in  such  manner  as  their  legis- 
latures may  direct,  their  respective  numbers  of  presidential 
electors.  If,  however,  states  neglect  to  make  such  appoint- 
ments, there  seems  to  be  no  way  by  which  Congress  may  compel 
them  to  do  so.  Finally  amendments  to  the  Federal  Constitution 
may  be  initiated  by  the  legislatures  of  two-thirds  of  the  states, 


io         STATE   GOVERNMENT  IN  UNITED   STATES 

and  must  be  referred  to  the  legislatures  or  special  state  conven- 
tions, whichever  Congress  may  determine,  and  be  ratified  by 
three-fourths  of  them,  in  order  to  become  a  part  of  the  supreme 
law  of  the  land.  The  states  are  also  entrusted  with  the  authority 
to  appoint  the  officers  of  the  militia  and  supervise  their  training 
according  to  the  discipline  prescribed  by  Congress,  but  Congress 
may  of  course  establish  a  federal  army  of  its  own  wholly  inde- 
pendent of  the  state  militia.  With  these  exceptions,  the  govern- 
ments of  the  states  are  the  agencies  solely  of  the  people  of  the 
states,  respectively,  and  the  people  of  the  nation  are  not  de- 
pendent upon  them  for  the  exercise  of  their  sovereign  powers. 

The  governments  of  the  several  states,  though  responsible 
primarily  and  mainly  to  the  people  thereof  respectively,  are  also 
placed  under  obligations  towards  one  another.  The  people  of 
the  nation  insist  that  each  state  must  give  full  faith  and  credit 
to  the  public  acts,  records,  and  judicial  proceedings  of  every  other 
state ; *  must  extend  the  same  privileges  and  immunities  to  citizens 
of  the  other  states  as  to  its  own ; 2  and  must  deliver  up  a  fugitive 
from  justice,  upon  demand  of  the  executive  authority  of  the 
state  from  which  he  fled,  to  be  removed  to  the  state  having  juris- 
diction of  the  crime.3  Finally,  controversies  between  two  or 
more  states,  not  settled  by  mutual  agreement,  must  be  submitted 
to  the  arbitrament  of  the  Supreme  Court  of  the  United  States.4 
Thus  the  federal  government  is  ultimately  responsible  for  en- 
forcement of  the  mutual  obligations  of  the  states,  and  the  mainte- 
nance of  the  supremacy  of  the  rights  of  the  nation  is  thereby 
assured. 

The  Federal  Constitution  also  imposes  on  the  government  of 
the  Union  certain  obligations  towards  the  people  of  the  states 
respectively.  It  provides  that  the  United  States  shall  guarantee 
to  every  state  the  republican  form  of  government ;  and  shall 
protect  each  of  them  against  invasion,  and,  on  application  of  the 
legislature,  or  of  the  executive  when  the  legislature  cannot  be 
convened,  against  domestic  violence.5  The  duty  of  keeping  the 
peace  against  both  external  and  internal  enemies  falls  therefore 
ultimately  upon  the  federal  government,  and  the  responsibility 
of  the  states  is  limited  to  ordinary  occasions  of  internal  policing. 

1  Constitution  of  the  United  States,  iv,  i.  2  Ibid.,  iv,  2. 

3  Ibid.,  iv,  2.  *  Ibid.,  iii,  2.  8  Ibid.,  iv,  4. 


THE  NATION  AND  THE  STATES  n 

The  most  significant  limitation,  however,  upon  the  responsibility 
of  the  states  is  contained  in  the  former  portion  of  the  above 
provision.  Thus  the  people  of  the  United  States,  when  creating 
their  more  perfect  union  in  the  form  of  a  republic,  determined 
also  that  the  states  should  be  forever  restricted  to  the  same  form 
of  government.  Their  liberty  to  adopt  any  other  form  of 
government  was  taken  away  forever. 

No  act  of  the  Federal  Convention  of  1787,  except  the  construc- 
tion of  the  more  perfect  union  itself,  was  felt  to  be  more  important 
than  this  guarantee  to  the  states  of  the  republican  form  of  govern- 
ment, and  yet  nowhere  in  the  Federal  Constitution  is  there  any 
definition  of  the  term  republican.  No  particular  government  is 
designated  as  republican,  nor  is  the  exact  form  to  be  guaranteed 
in  any  manner  especially  described.  Nevertheless  by  providing 
that  the  United  States  shall  guarantee  to  every  state  the  republi- 
can form,  the  people  of  the  Union  necessarily  entrusted  to  the 
federal  government  the  task  of  determining  in  cases  of  doubt 
what  is  a  republican  form  of  government,  and  several  cases  of 
doubt  have  in  fact  arisen.  What  the  Fathers  of  the  republic 
understood  by  the  term,  "a  republican  form  of  government," 
will  be  discussed  in  the  next  chapter.  It  is  sufficient  to  point 
out  here  that  the  federal  government,  not  the  states,  has  the 
final  authority  to  determine  cases  of  doubt  as  they  shall  arise, 
and  may  enforce  its  determinations  by  the  exclusion  from  Con- 
gress of  senators  and  representatives  chosen  by  a  state  not 
possessing  a  republican  form  of  government,  or,  if  necessary,  by 
the  use  of  force.  Doubtless  the  supreme  power  in  the  several 
states  resides  in  the  people  thereof,  but  their  power  is  supreme 
only  within  the  limits  prescribed  by  the  people  of  the  nation, 
and  these  limits  may  be  altered  only  with  the  consent  of  the 
whole  people  obtained  in  the  manner  appointed  for  the  amend- 
ment of  the  Constitution  of  the  United  States.  The  most  con- 
clusive evidence  of  the  ultimate  sovereignty  of  the  people  of 
the  nation  and  of  the  dependent  status  of  the  people  of  any  par- 
ticular state  is  afforded  by  this  provision  that  the  United  States 
shall  guarantee  to  every  state  a  republican  form  of  government, 
whether  the  people  of  every  state  wish  such  a  government  or 
not. 


12         STATE  GOVERNMENT  IN  UNITED   STATES 

THE  POWERS  OF  THE  STATES 

The  nature  and  extent  of  the  sphere  reserved  to  the  states  may 
be  shown  most  clearly  by  describing  the  distribution  of  powers 
between  the  governments  of  the  states,  respectively,  and  of  the 
Union,  as  expressed  in  the  Federal  Constitution. 

The  first  limitation  upon  the  powers  of  the  states  consists  in  the 
delegation  of  certain  powers  by  the  Federal  Constitution  to  the 
government  of  the  Union.1  Not  all  the  powers  delegated  to  the 
federal  government,  however,  operate  to  limit  directly  those  of 
the  states.  For  example,  the  powers  to  lay  and  collect  taxes,  to 
borrow  money  on  the  credit  of  the  United  States,  and  to  govern 
the  District  of  Columbia  and  the  territories,  do  not  directly  affect 
the  powers  of  the  states.  Indirectly,  nevertheless,  these  powers 
may  be  used  by  the  federal  government  to  influence  or  control 
the  action  of  the  states.  Thus  the  power  to  govern  the  District 
of  Columbia  may  be  used  to  establish  a  model  child  labor  law  or 
form  of  municipal  government  for  the  states  to  copy,  and  the 
power  to  levy  taxes  has  been  used  to  put  an  end  to  the  circula- 
tion of  bank  notes  issued  by  state  banks  and  to  the  manufac- 
ture of  oleomargarine  in  imitation  of  butter  and  of  matches 
containing  a  dangerous  admixture  of  poisonous  phosphorus. 
Other  powers  delegated  to  the  federal  government,  such  as  the 
powers  to  coin  money,  declare  war,  grant  letters  of  marque  and 
reprisal,  raise  and  support  armies,  and  provide  and  maintain  a 
navy,  are  reenforced  by  express  prohibitions  upon  the  states  to 
exercise  similar  powers.  The  power  to  provide  for  organizing, 
arming,  and  disciplining  the  militia,  and  for  governing  such  parts 
thereof  as  may  be  employed  in  the  service  of  the  United  States, 
imposes  corresponding  limitations  upon  the  power  of  the  states 
to  control  the  militia.  In  effect  the  Constitution  reserves  to  the 
latter  only  the  appointment  of  the  officers  and  the  supervision 
of  training  according  to  the  discipline  prescribed  by  Congress. 

A  number  of  federal  powers  remain  which  also  operate  to 
limit  the  powers  of  the  states,  but  in  a  manner  not  altogether  clear 
and  precise.  Thus  the  power  to  establish  an  uniform  rule  of 
naturalization  and  uniform  bankruptcy  laws  leaves  the  states 
free  to  regulate  those  subjects  in  the  absence  of  federal  legisla- 

1  Constitution  of  the  United  States,  i,  8. 


THE  NATION  AND  THE  STATES  13 

tion ;  and  the  power  to  fix  the  standards  of  weights  and  measures 
also  leaves  the  states  free  to  regulate  such  standards  in  the  ab- 
sence of  regulation  by  Congress.  In  some  cases,  however,  it 
might  be  understood  that  the  absence  of  regulation  by  Congress 
indicated  a  purpose,  not  to  leave  the  matter  to  the  states  but 
to  leave  the  matter  unregulated  by  any  political  authority.  For 
example,  the  power  of  the  states  to  regulate  commerce  within 
their  respective  boundaries  is  limited  by  the  federal  power  to  regu- 
late interstate  and  foreign  commerce,  but  the  absence  of  complete 
federal  regulation  of  interstate  commerce  leaves  an  indefinite  field 
of  regulation  to  the  states.  The  powers  delegated  to  the  federal 
government  with  respect  to  post  offices  and  post  roads,  patents 
and  copyrights,  also  leave  a  rather  indefinite  field  for  state  action. 
The  more  accurate  delimitation  of  these  "twilight  regions" 
between  the  more  clearly  defined  regions  of  state  and  federal 
authority,  respectively,  is  the  task  of  federal  constitutional  law, 
and  is  to  be  sought  in  a  treatise  on  the  law  of  the  Federal  Con- 
stitution rather  than  in  a  description  of  the  government  of  the 
states.  In  connection  with  the  subsequent  discussion  of  the 
state  judiciary,  however,  the  general  trend  of  the  interpretation 
of  the  Federal  Constitution  with  respect  to  the  powers  of  the 
states,  and  its  effects  upon  the  government  of  the  states,  will  be 
considered. 

The  most  important  power  delegated  to  the  government  of 
the  Union  and  serving  to  limit  the  powers  of  the  states  is  the 
treaty-making  power.  The  exclusive  power  to  make  treaties 
was  vested  in  the  government  of  the  Union  both  under  the  Articles 
of  Confederation  and  under  the  Constitution  of  1787.  Certain 
reservations  to  the  states,  which  operated  as  restrictions  upon  the 
federal  treaty-making  power,  were  expressed  in  the  Articles  of 
Confederation,  but  no  reservations  were  made  in  the  Constitu- 
tion of  1787  except  such  as  may  be  implied  in  the  statement  that 
all  treaties  made  "under  the  authority  of  the  United  States" 
shall  be  the  supreme  law  of  the  land.  There  can  be  little  doubt, 
for  example,  that  the  federal  government  may,  by  treaty, 
define  the  status  of  foreign  subjects  within  the  states,  regulate 
their  personal  and  property  rights,  prescribe  their  privileges  and 
immunities,  and  provide  for  their  welfare  in  general,  the  constitu- 
tions and  laws  of  the  states  to  the  contrary  notwithstanding.  In 


14         STATE   GOVERNMENT  IN  UNITED  STATES 

cases  involving  a  conflict  between  the  authority  of  a  state  and 
the  supremacy  of  a  treaty  of  the  nation,  the  power  of  the  federal 
courts  may  always  be  invoked  to  enforce  the  latter.  As  Mr. 
Root  puts  it:  "The  treaty-making  power  is  not  distributed; 
it  is  all  vested  in  the  national  government ;  no  part  of  it  is  vested 
in  or  reserved  to  the  states.  ...  It  is,  of  course,  conceivable 
that,  under  pretense  of  exercising  the  treaty-making  power,  the 
President  and  Senate  might  attempt  to  make  provisions  regard- 
ing matters  which  are  not  proper  subjects  of  international  agree- 
ment, and  which  would  be  only  a  colorable  —  not  a  real  —  exer- 
cise of  the  treaty-making  power ;  but  so  far  as  the  real  exercise 
of  the  power  goes,  there  can  be  no  question  of  state  rights, 
because  the  Constitution  itself,  in  the  most  explicit  terms,  has 
precluded  the  existence  of  any  such  question."  1 

The  delegation  to  Congress  of  power  to  make  all  laws  which 
may  be  necessary  and  proper  for  carrying  into  execution  the 
powers  vested  by  the  Federal  Constitution  in  the  government  of 
the  United  States,  or  in  any  department  or  officer  thereof,  also 
serves  to  limit  the  powers  of  the  states.2  It  follows  from  this 
general  delegation  of  law-making  power  that  any  power  necessary 
and  proper  for  the  maintenance  of  the  national  sovereignty  may 
be  employed  by  the  federal  government,  for  example,  to  aid  in 
executing  a  treaty  duly  made  under  the  authority  of  the  United 
States,  and  that  in  the  first  instance  the  President  and  Congress 
are  the  judges  of  the  necessity  and  propriety  thereof.  Thus, 
although  the  federal  government  is  not  expressly  authorized 
to  regulate  the  common  school  system  of  any  state,  it  may  estab- 
lish a  common  school  system  of  its  own  in  any  state  for  the  pur- 
pose of  fulfilling  a  treaty  obligation  to  afford  the  children  of 
alien  parents  school  facilities  equivalent  to  those  enjoyed  by  the 
children  of  citizens.  Hence  in  effect  no  state  may  deny  equal 
school  facilities  to  alien  children  within  its  borders,  if  such  denial 
is  contrary  to  the  policy  of  the  people  of  the  United  States,  al- 
though the  power  to  provide  for  the  education  of  the  people  is 
one  of  those  exercised  exclusively  by  the  states  before  1789  and 
is  presumably  still  reserved  to  them,  so  far  as  not  inconsistent 
with  the  sovereignty  of  the  nation. 

1  Elihu  Root,  Addresses  on  International  Subjects  (1916),  p.  14. 
1  Constitution  of  the  United  States,  i,  8,  18. 


THE  NATION  AND  THE  STATES  15 

The  second  limitation  upon  the  powers  of  the  states  consists 
in  certain  prohibitions  expressly  imposed  upon  the  states  in  the 
Federal  Constitution.  No  state  may  enter  into  any  treaty, 
alliance,  or  confederation ;  grant  letters  of  marque  or  reprisal ; 
coin  money ;  emit  bills  of  credit ;  make  anything  but  gold  and 
silver  coin  a  tender  in  payment  of  debts ;  pass  any  bill  of  at- 
tainder, ex  post  facto  law,  or  law  impairing  the  obligation  of  con- 
tracts, or  grant  any  title  of  nobility.1  No  state  may,  without  the 
consent  of  Congress,  lay  any  impost  or  duties  on  imports  or  ex- 
ports, except  what  may  be  absolutely  necessary  for  executing 
its  inspection  laws ;  and  the  net  produce  of  all  duties  and  im- 
posts, laid  by  any  state  on  imports  or  exports,  must  be  for  the 
use  of  the  treasury  of  the  United  States ;  and  all  such  laws  must 
be  subject  to  the  revision  and  control  of  Congress.2  No  state 
may,  without  the  consent  of  Congress,  lay  any  duty  of  tonnage, 
keep  troops  or  ships  of  war  in  time  of  peace,  enter  into  any  agree- 
ment or  compact  with  another  state  or  with  a  foreign  power,  or 
engage  in  war,  unless  actually  invaded  or  in  such  imminent  danger 
as  will  not  admit  of  delay.3  No  state  may  establish  slavery 
or  involuntary  servitude,  except  as  a  punishment  for  crime 
whereof  the  party  must  be  duly  convicted ;  no  state  may  make 
or  enforce  any  law  which  shall  abridge  the  privileges  or  immunities 
of  citizens  of  the  United  States ;  nor  may  any  state  deprive  any 
person  of  life,  liberty,  or  property,  without  due  process  of  law, 
nor  deny  to  any  person  within  its  jurisdiction  the  equal  protec- 
tion of  the  laws ;  nor  may  any  state  deny  or  abridge  the  right 
of  an  American  citizen  to  vote  on  account  of  race,  color,  or  any 
previous  condition  of  servitude.4  The  effects  of  most  of  these 
prohibitions  upon  the  power  of  the  states  are  apparent,  but  the 
effects  of  a  few,  especially  of  those  contained  in  the  fourteenth 
amendment,  are  not  apparent,  though  profound  and  far-reaching. 
These  effects  will  be  discussed  subsequently  in  connection  with 
the  discussion  of  the  powers  of  the  several  organs  of  state  govern- 
ment. 

The  third  limitation  upon  the  powers  of  the  states  consists 
in  the  reservation  to  the  people  of  the  United  States  of  all 
powers  necessary  and  proper  for  the  maintenance  of  their  sover- 

1  Ibid.,  i,  10,  i.  *  Ibid.,  i,  10,  3. 

1  Ibid.,  i,  10,  2.  4  Ibid.,  Amendments,  arts,  xiii-xv. 


16         STATE  GOVERNMENT  IN  UNITED  STATES 

eignty.  Powers  reserved  to  the  people  of  the  several  states 
before  the  formation  of  the  more  perfect  union  of  1789,  but 
necessary  and  proper  for  the  maintenance  of  the  sover- 
eignty of  the  people  of  the  United  States,  are  generally,  but 
not  always,  specified  in  the  Federal  Constitution.  Thus  the 
power  to  define  and  punish  piracies  and  felonies  committed  on 
the  high  seas,  and  to  make  rules  concerning  captures  on  land  and 
sea,  was  vested  in  the  government  of  the  Union  by  the  Articles 
of  Confederation,  but  there  was  no  general  and  comprehensive 
grant  of  the  power  to  define  and  punish  offenses  against  the  law 
of  nations.  This  power,  necessary  for  the  maintenance  of  the 
sovereignty  of  the  nation,  was  expressly  delegated  by  the  Con- 
stitution of  1787  to  the  government  of  the  more  perfect  union.1 
The  most  important  instance  of  the  reservation  of  a  power 
necessary  and  proper  for  the  maintenance  of  the  national  sov- 
ereignty is  that  already  referred  to,  namely,  the  power  to  deter- 
mine the  organization  and  procedure  of  a  federal  constitutional 
convention.  This  power  is  neither  delegated  to  Congress  nor 
prohibited  to  the  states,  but  it  cannot  be  vested  in  the  people 
of  the  states,  respectively,  without  seriously  impairing  the 
sovereignty  of  the  people  of  the  nation.  It  must  be  vested  in 
the  nation.  Though  not  expressly  delegated  to  the  federal 
government,  it  may  be  implied  in  the  specific  grant  of  the  power 
to  make  all  laws  necessary  and  proper  for  carrying  into  execution 
the  power  to  call  a  constitutional  convention,2  or  it  may  be  com- 
prehended in  the  general  charge  placed  upon  the  federal  govern- 
ment as  the  agency  of  the  nation  to  accomplish  the  purposes 
expressed  in  the  preamble  of  the  Federal  Constitution. 

The  special  limitation  imposed  upon  the  exercise  of  the  re- 
served sovereign  powers  is  that  contained  in  the  unwritten  con- 
stitution of  the  United  States,  namely,  that  such  powers  be 
derived  from  the  consent  of  the  people  of  the  nation,  that  is, 
that  they  be  exercised  only  with  the  approval  of  public  opinion 
throughout  the  United  States.  There  are  many  acts  of  assumed 
power  by  officers  of  the  United  States  which  cannot  be  justified 
except  upon  this  theory.  For  example,  the  powers  to  emit  bills 
of  credit  and  make  anything  but  gold  and  silver  coin  a  tender 
in  payment  of  debts  are  not  expressly  delegated  to  the  federal 

1  Constitution  of  the  United  States,  i,  8,  10.  J  Ibid.,  i,  8,  18. 


THE  NATION  AND  THE  STATES  17 

government,  although  expressly  prohibited  to  the  states.  These 
powers  may  be  implied  in  the  power  to  borrow  money  on  the 
credit  of  the  United  States,  or  to  coin  money  and  regulate  the 
value  thereof,  but  it  seems  more  candid  to  justify  the  emission 
of  bills  of  credit  by  the  federal  government  and  the  forced  cir- 
culation of  such  paper  as  a  legal  tender  in  payment  of  private 
debts  upon  the  theory  that  Congress  may  resort  to  a  reserved 
sovereign  power  in  case  of  need  with  the  consent  of  the  people 
of  the  nation.1  So  too,  the  suspension  by  President  Lincoln  of 
the  privilege  of  the  writ  of  habeas  corpus  in  the  spring  of  1861 
without  previous  authority  from  Congress  was  either  a  lawless 
usurpation  of  arbitrary  power  or  a  necessary  and  proper  exercise 
of  a  reserved  sovereign  power,  sanctioned  by  the  consent  of  the 
people  of  the  United  States  and  hence  not  in  conflict  with  the 
unwritten  law  of  the  Constitution.  It  must  be  recognized, 
however,  that  such  an  exercise  of  power  is  dangerous,  and  not  to 
be  resorted  to  without  a  clear  mandate  from  the  nation,  for  the 
written  constitution  is  intended  to  be  the  supreme  law  of  the 
land,  subject  to  the  maxim,  solus  populi  suprema  lex. 

THE  IMPORTANCE   OF   STATE   GOVERNMENT 

The  powers  which  are  reserved  to  the  states,  though  limited, 
are  nevertheless  very  extensive  and  highly  important.  They 
include  among  others  the  following :  (i)  the  power  to  establish 
and  maintain  organized  governments,  including  governments 
for  the  subdivisions  of  the  states,  counties,  towns,  villages,  and 
cities,  subject  to  the  single  condition  that  they  be  republican  in 
form;  (2)  the  power  to  regulate  the  suffrage,  subject  to  the 
condition  that  no  citizen  may  be  denied  the  right  to  vote  on 
account  of  race,  color,  or  previous  condition  of  servitude;  (3) 
the  power  to  levy  and  collect  taxes,  except  upon  interstate  and 
foreign  commerce,  and  upon  instruments  of  the  federal  govern- 
ment ;  (4)  the  police  power,  including  the  whole  field  of  legislation 
to  preserve  the  peace  within  the  state,  to  protect  the  public 
health  and  morals,  and  to  promote  the  common  welfare,  when 
threatened  by  the  unrestrained  activity  of  persons  within  the 
borders  of  the  respective  states,  subject  to  the  condition  that  no 

1  See  the  Legal  Tender  cases,  8  Wall,  603;   12  Wall,  457;   no  U.  S.  421. 
C 


i8         STATE  GOVERNMENT  IN  UNITED  STATES 

person  be  deprived  of  life,  liberty,  or  property  without  due 
process  of  law,  nor  be  denied  the  equal  protection  of  the  laws ; 
(5)  hitherto  unfathomed  powers  to  deal  with  the  vast  subjects  of 
religion,  education,  and  the  supply  of  public  utilities,  with  the 
exception  of  the  comparatively  few  public  services,  such  as  the 
post  office,  delegated  to  the  federal  government ;  (6)  the  power 
to  create  corporations  and  trusts ;  and  (7)  to  deal  with  the  whole 
subject  of  private  law,  including  the  power  to  regulate  the  vital 
institutions  of  modern  civilization,  such  as  the  family  and  the 
institution  of  private  property.  The  bare  enumeration  of  these 
vast  powers  shows  the  transcendent  importance  in  the  American 
federal  system  of  the  governments  of  the  states. 


PART   II 

THE  ORIGIN  AND   DEVELOPMENT   OF   THE  STATE 
GOVERNMENTS 


CHAPTER  H 
THE  ORIGINAL  PRINCIPLES  OF  STATE  GOVERNMENT 

THE  principles  upon  which  the  original  state  governments  were 
established  cannot  be  traced  to  any  single  source.  In  part  they 
were  founded  upon  the  experience  of  the  American  people  under 
the  colonial  governments  provided  for  the  several  royal  and 
proprietary  provinces  and  chartered  plantations.  In  part  they 
were  derived  from  the  colonists'  knowledge  of  the  structure  and 
operation  of  the  British  government,  as  set  forth  in  the  writings 
of  Blackstone  and  Montesquieu.  In  part  also  they  were  deduced 
from  the  general  principles  of  political  science,  as  understood  by 
the  Whig  party  in  England  and  expounded  in  the  writings  of 
Milton,  Harrington,  and  Sidney,  and  above  all  John  Locke.  In 
the  Puritan  and  Quaker  colonies,  the  people's  ideas  of  civil 
government  were  much  influenced  by  the  success  of  democracy 
in  the  government  of  the  church.1  Rousseau  and  other  contem- 
porary European  writers  of  the  social-compact  school  of  political 
philosophy  became  known  to  the  Americans  during  the  progress 
of  their  struggle  for  independence,  too  late,  however,  to  exert 
much  influence  upon  the  substance  of  their  political  principles. 
As  the  need  for  political  reconstruction  grew  urgent,  the  Revolu- 
tionary leaders  acquainted  themselves  with  the  whole  literature 
of  political  science.  Plato  and  Aristotle,  Polybius  and  Cicero, 
were  studied  with  the  same  care  as  the  modern  writers.  The 
constitutional  history  of  the  ancient  commonwealths  of  Greece 
and  Rome  became  as  familiar  as  that  of  the  more  modern  Swiss 
confederacy  and  Dutch  republic.  As  Burke  in  his  speech  on 
Conciliation  with  America  candidly  avowed,  there  probably  was 
never  a  time  or  place  at  which  interest  in  the  science  of  govern- 

1  See  John  Wise,  Vindication  of  the  Government  of  New  England  Churches,  1715, 
(zd  edit.,  1772),  Demonstration  II.  Cf.,  Oscar  S.  Straus,  Origin  of  the  Republican 
Form  of  Government  in  the  United  States. 

21 


22         STATE   GOVERNMENT  IN  UNITED   STATES 

ment  was  deeper  or  more  widespread  than  among  the  American 
people  during  the  Revolution. 

THE  DOCTRINE   OF  NATURAL   RIGHTS 

The  first  of  the  original  principles  of  state  government  was  ex- 
pressed in  the  doctrine  of  natural  rights.  This  doctrine  has  been 
stated  in  imperishable  language  in  the  opening  sentences  of 
the  Declaration  of  Independence,  and  forms  the  most  cherished 
element  of  the  political  creed  of  the  American  people.  "  We 
hold  these  truths  to  be  self-evident,  that  all  men  are  created 
equal;  that  they  are  endowed  by  their  Creator  with  certain 
unalienable  rights;  that  among  these  are  life,  liberty  and  the 
pursuit  of  happiness."  The  foundation  of  this  belief  in  the 
natural  equality  of  mankind  was  explained  by  Thomas  Paine  as 
follows : 1  "Every  child  born  into  the  world  must  be  considered 
as  deriving  its  existence  from  God.  The  world  is  as  new  to  him 
as  it  was  to  the  first  man  that  existed,  and  his  natural  right  in  it  is 
of  the  same  kind.  The  Mosaic  account  of  the  creation2  .  .  . 
shows  that  the  equality  of  man,  so  far  from  being  a  modern 
doctrine,  is  the  oldest  upon  record."  Such  was  the  contemporary 
explanation  of  the  American  principle  of  equal  rights. 

The  language  of  this  declaration  of  faith  in  the  rights  of  man  has 
given  rise  to  much  fruitless  discussion.  It  is  so  obvious  that  all 
men  are  not  born  equal,  and  that  their  natural  inequality  is  en- 
hanced by  the  operation  of  many  of  the  laws  of  society,  that  there 
has  been  some  difficulty  in  understanding  just  what  the  Revolu- 
tionary Fathers  meant  by  their  doctrine  of  natural  rights.  Nor 
were  the  Revolutionary  leaders  themselves  blind  to  this  fact. 
Thus  John  Adams  wrote:  "But  what  are  we  to  understand  by 
equality  ?  Are  the  citizens  all  to  be  of  the  same  age,  sex,  size, 
strength,  stature,  activity,  courage,  hardiness,  industry,  patience, 
ingenuity,  wealth,  knowledge,  fame,  wit,  temperance,  constancy, 
and  wisdom  ?  Was  there,  or  will  there  ever  be,  a  nation  whose 
individuals  were  all  equal  in  natural  and  acquired  qualities,  in 

1  The  Rights  of  Man  (edit,  of  1792),  pt.  i,  p.  37. 

1 "  And  God  said, '  Let  us  make  man  in  our  own  image,'  ...  in  the  image  of  God 
created  he  him;  male  and  female  created  he  them."  The  distinction  of  sexes  is 
pointed  out,  Paine  observes,  but  no  other  distinction  is  even  implied. 


ORIGINAL  PRINCIPLES  OF  STATE   GOVERNMENT    23 

virtues,  talents,  and  riches?  The  answer  of  all  mankind  must 
be  in  the  negative."  1  Certainly  in  a  land  which  legalized  negro 
slavery  all  men  could  not  be  said  actually  to  be  born  equal. 
Later,  when  the  struggle  over  slavery  was  at  its  height,  Senator 
Douglas  declared:  "No  man  can  vindicate  the  character,  mo- 
tives, and  conduct  of  the  signers  of  the  Declaration  of  Independ- 
ence, except  upon  the  hypothesis  that  they  referred  to  the  white 
race  alone,  and  not  to  the  African,  when  they  declared  all  men 
have  been  created  equal;  that  they  were  speaking  of  British 
subjects  on  this  continent  being  equal  to  British  subjects  born 
and  residing  in  Great  Britain."  2  Another  United  States  senator 
of  the  same  period  tersely  condemned  the  "self-evident  truths" 
of  the  Declaration  as  "  self-evident  lies." 

In  fact  it  is  only  in  a  qualified  sense  of  the  terms  that  all  men 
can  be  said  to  be  created  equal,  but  the  qualifications  are  not 
those  set  forth  by  Douglas.  The  true  interpretation  of  the  doc- 
trine of  natural  rights  is  that  so  patiently  and  convincingly  ex- 
pounded by  Abraham  Lincoln.  "I  think  the  authors  of  that 
notable  instrument  [the  Declaration  of  Independence]  intended 
to  include  all  men,  but  that  they  did  not  intend  to  declare  all  men 
equal  in  all  respects.  They  did  not  mean  to  say  that  all  were 
equal  in  color,  size,  intellect,  moral  development,  or  social  capacity. 
They  denned  with  tolerable  distinctness  in  what  respects  they 
did  consider  all  men  created  equal — equal  in  certain  inalienable 
rights,  among  which  are  life,  liberty,  and  the  pursuit  of  happiness. 
This  they  said  and  this  they  meant.  They  did  not  mean  to  assert 
the  obvious  untruth,  that  all  men  were  then  actually  enjoying 
that  equality,  nor  yet  that  they  were  about  to  confer  it  upon  them. 
In  fact,  they  had  no  power  to  confer  such  a  boon.  They  meant 
simply  to  declare  the  right,  so  that  the  enforcement  of  it  might 
follow  as  fast  as  circumstances  should  permit.  They  meant  to 
set  up  a  standard  maxim  for  free  society  which  should  be  familiar 
to  all  and  revered  by  all  —  constantly  looked  to,  constantly 
labored  for,  and  even,  though  never  perfectly  attained,  constantly 

1  For  a  further  discussion  of  the  inequality  of  man  see  John  Adams,  Defence  of 
the  Constitutions  of  the  United  States,  pp.  108-120.  For  a  contemporary,  and  very 
judicious,  discussion  of  the  vexed  question  of  racial  inequality,  see  Thomas  Jeffer- 
son, Notes  on  Virginia  (ch.  14),  pp.  143-151. 

*  Stephen  A.  Douglas,  Speech  at  Springfield,  June  12,  1857. 


24         STATE   GOVERNMENT  IN  UNITED  STATES 

approximated ;  and  thereby  constantly  spreading  and  deepening 
its  influence  and  augmenting  the  happiness  and  value  of  life  to 
all  people,  of  all  colors,  everywhere."  1 

The  doctrine  of  natural  rights  itself  was  never  more  than  a 
mode  of  expressing  a  profound  belief  of  the  American  people.2 
As  a  mode  of  expression  it  never  gained  universal  acceptance, 
and  has  since  been  generally  discarded  by  political  philosophers 
in  favor  of  more  scientific  modes  of  expression.  The  underlying 
belief  did  not,  however,  derive  its  validity  from  the  form  of 
expression,  but  from  the  very  nature  of  the  people  who  began  and 
carried  through  to  final  success  the  struggle  for  liberty  and  union. 
The  men  and  women  of  the  American  Revolution  held  a  deep 
conviction  of  the  worthiness  of  the  lives  and  purposes  of  common 
men  and  women.  These  "common  people"  believed  in  them- 
selves ;  and  so  believing,  believed  also  that  the  world  owed  them 
an  opportunity  to  live,  and  not  only  to  live,  but  to  make  the  most 
and  best  of  their  lives,  each  after  his  own  fashion,  so  far  as  was 
consistent  with  like  opportunities  for  the  others.  The  doctrine 
of  the  natural  rights  of  man  really  meant  to  the  people  of  the 
Revolution  the  belief  in  the  natural  nobility  of  mankind,3  a 
belief  aptly  summed  up  in  Jefferson's  familiar  phrase:  "equal 
opportunities  to  all,  special  privileges  to  none." 

THE  IDEA   OF  LIBERTY 

The  Massachusetts  declaration  of  rights  declares  not  simply 
that  all  men  are  created  equal,  but  that  they  are  created  "free 
and  equal."  4  Without  doubt  the  idea  of  freedom  was  as  essen- 
tial as  that  of  equality  to  the  Revolutionary  belief  in  the  natural 
nobility  of  man.  Also  the  idea  of  freedom  has  proved  as  difficult 
of  definition  as  that  of  equality.  "There  is  no  word  that  admits 
of  more  various  significations,  and  has  made  more  different  im- 
pressions on  the  human  mind,  than  that  of  Liberty,"  said  Montes- 
quieu.5 Many  of  the  Fathers  were  brought  up  under  the  in- 

1  Lincoln,  Speech  at  Springfield,  June  26,  1857. 

3  See  Nathaniel  Chipman,  Sketches  of  the  Principles  of  Government  (Rutland, 
Vermont,  1793),  sketch  iv,  sect,  i,  and  sketch  v,  sect.  i. 

1  Cf .  Francis  Lieber,  Miscellaneous  Writings,  ii,  p.  84.  4  Art.  i. 

6  L'Esprit  des  Lois,  bk.  xi,  ch.  iv.  See  also  Francis  Lieber,  Civil  Liberty  and  Self- 
Government,  ch.  ii. 


ORIGINAL  PRINCIPLES  OF  STATE  GOVERNMENT    25 

fluence  of  the  Puritan  ways  of  thinking.  They  would  have  held 
with  Milton  that  "real  and  substantial  liberty  is  rather  to  be 
sought  from  within  than  from  without;  its  existence  depends, 
not  so  much  on  the  terror  of  the  sword,  as  in  sobriety  of  conduct 
and  integrity  of  life."  l  The  political  philosophy  of  the  times, 
however,  called  for  a  definition  of  liberty  in  accordance  with  the 
doctrine  of  natural  rights.  Natural  liberty  was  the  liberty  enjoyed 
by  men  living  in  a  state  of  nature.  "  Men  living  together  accord- 
ing to  reason  without  a  common  superior  on  earth  with  authority 
to  judge  between  them  is  properly  the  state  of  Nature,"  declared 
Locke.2  To  found,  however,  such  a  state  of  anarchy,  "imbecile 
anarchy,"  John  Quincy  Adams  called  it,3  was  not  the  object  of 
the  Revolutionary  Fathers,  but  rather  a  state  of  civilized  govern- 
ment in  which  civil  liberty  should  be  substituted  for  natural 
liberty.4 

The  speculative  consideration  of  what  constituted  civil  liberty 
in  the  abstract  seems  to  have  had  little  interest  for  the  men  of  the 
Revolution.  Both  in  the  American  Revolution  and  in  the  English 
Revolution  of  the  preceding  century  men  were  concerned  chiefly 
in  establishing  certain  specific  rights  in  particular,  rather  than 
civil  rights  in  general.  The  great  constitutional  documents  of 
the  English  race,  Magna  Charta,  the  Petition  of  Right,  the  Bill  of 
Rights,  the  Act  of  Settlement,  the  Declaration  of  Independence, 
all  deal  with  the  redress  of  notorious  grievances  rather  than  the 
definition  of  political  abstractions.  Many  of  the  elements  of 
freedom  are  specified  in  the  various  Revolutionary  declarations 
of  rights,  but  for  a  complete  description  of  the  idea  of  freedom 
entertained  by  the  Fathers  we  must  look  to  their  deeds  as  well 
as  to  their  words. 

The  Revolutionary  idea  of  civil  liberty  certainly  extended  as 
far  as  to  comprise  complete  liberty  of  the  person.  Outside  of  the 
two  southernmost  states,  the  leaders  of  the  people  in  the  Revolu- 
tion all  professed  their  dislike  of  slavery.  None  did  so  more 

1  See  Milton's  Second  Defence  of  the  People  of  England.  This  whole  Defence 
is  a  powerful  plea  that  men  who  would  govern  one  another  must  first  be  fit  to  govern 
themselves. 

1  John  Locke,  Second  Treatise  of  Government ,  ch.  iii. 

1  See  his  Letters  of  Publicola,  attacking  Paine's  Rights  of  Man  (1792). 

4  See  Thomas  Paine,  Rights  of  Man,  pt.  i,  pp.  38-40.  See  also  John  Locke,  Sec- 
ond Treatise  of  Government,  ch.  ix. 


26         STATE  GOVERNMENT  IN  UNITED  STATES 

decidedly  than  the  leaders  in  Virginia,  where  slavery  was  never- 
theless permitted  to  endure.1  In  the  northern  states,  where  the 
practical  difficulties  in  the  way  of  a  thorough  application  of  the 
idea  of  personal  freedom  were  less  serious,  negro  slavery  was 
abolished  under  the  influence  of  the  Revolutionary  spirit.  In 
Pennsylvania  the  article  of  the  declaration  of  rights  establishing 
the  principle  of  natural  equality  was  held  to  require  the  speedy 
enactment  of  laws  to  free  the  slaves.  In  Vermont  the  same  article 
was  followed  by  another  in  the  declaration  of  rights  itself  proclaim- 
ing expressly  the  personal  freedom  of  the  negroes.  In  Massa- 
chusetts a  similar  article  was  interpreted  by  the  supreme  court 
to  have  emancipated  the  slaves  of  its  own  force  without  further 
legislation.  Throughout  the  North  the  effect  of  the  Declaration  of 
Independence  was  to  free  the  slaves  at  once  or  to  inaugurate  a 
movement  which  resulted  in  their  eventual  peaceful  emancipa- 
tion by  state  action.  Under  the  influence  of  the  same  ideal  of 
personal  liberty,  the  Congress  of  the  Confederation  provided  for 
the  exclusion  of  slavery  from  the  Northwest  Territories.  The 
fact  that  the  slaves  were  not  immediately  emancipated  through- 
out the  entire  extent  of  the  Union  does  not  indicate  that  the 
Fathers  were  insincere  hi  their  professions  of  belief  in  civil  liberty, 
but  rather  that  they  were  the  victims  of  adverse  circumstances. 

How  much  farther  than  mere  personal  freedom  from  physical 
restraint  the  Revolutionary  idea  of  liberty  extended  is  difficult  to 
ascertain.  Other  elements  of  freedom,  such  as  freedom  of  speech 
and  of  the  press,  are  enumerated  in  all  the  revolutionary  decla- 
rations of  rights.  It  is  certain,  however,  that  the  idea  of  free- 
dom entertained  by  the  Fathers  did  not  extend  so  far  as  to  include 
what  we  now  call  freedom  of  contract.2 

The  Revolutionary  idea  of  liberty  logically  required  the 
acknowledgment  of  the  principle  of  liberty  of  conscience,  that  is, 
the  liberty  of  the  individual  publicly  to  profess  his  religious  faith 
and  to  worship  according  to  the  dictates  of  his  own  conscience. 

1  See,  for  a  statement  of  some  of  the  obstacles  to  emancipation,  Jefferson,  Notes  on 
Virginia,  p.  151. 

2Lieber,  for  example,  in  his  work  on  Civil  Liberty  and  Self-Government  (ist  ed., 
1853),  makes  no  mention  of  freedom  of  contract.  A  proposition  to  amend  the 
declaration  of  rights,  by  adding  an  express  declaration  of  the  right  to  freedom  of  con- 
tract, was  made  in  the  Massachusetts  constitutional  convention  of  1853,  but  was  not 
adopted. 


ORIGINAL  PRINCIPLES  OF  STATE   GOVERNMENT    27 

It  cannot  be  said  that  religious  liberty  was  a  doctrine  to  which 
the  American  people  were  naturally  inclined.  In  several  of  the 
colonies  it  had  been  vigorously  denied,  and  only  Rhode  Island 
and  Pennsylvania  expressly  tolerated  all  Christian  sects.  The 
Puritan  idea  of  liberty,  as  has  been  stated,  laid  less  stress  on  legal 
rights  than  on  moral  attitudes,  but  the  formation  of  the  Union 
and  the  growth  of  a  national  spirit  rendered  sectarian  intolerance 
archaic,  thus  enabling  Puritanism  at  last  to  rid  itself  of  its  worst 
defect.  To  the  Revolutionary  leaders  freedom  of  thought  was  as 
vital  as  freedom  of  conduct,  and  to  their  lasting  renown  they 
established  liberty  of  the  conscience  on  the  same  basis  as  liberty 
of  the  person  among  the  "natural,  essential,  and  unalienable" 
rights  of  man.1 

The  Revolutionary  idea  of  religious  toleration  did  not  require 
that  the  public  offices  should  be  thrown  open  indiscriminately 
to  all  persons  without  regard  to  religious  faith.  In  Massachusetts 
all  state  officers  chosen  by  popular  election  were  expressly  re- 
quired to  declare  their  belief  in  the  Christian  religion,  and  in 
New  Hampshire  they  had  to  be  Protestants.  Virginia  set  a  better 
example  by  the  abolition  of  religious  tests  for  office-holding  when 
the  first  state  constitution  was  adopted  in  1776,  but  a  majority  of 
the  states  which  adopted  constitutions  during  the  Revolutionary 
period  required  some  sort  of  a  religious  qualification  from  the 
holders  of  the  principal  public  offices.  The  opposition  to  re- 
ligious tests  was,  however,  strong  and  growing,  and  in  1787  the 
Federal  Convention  provided  that  no  religious  test  should  ever  be 
required  as  a  qualification  for  any  office  or  public  trust  under  the 
United  States.  Public  opinion  by  that  time  had  clearly  turned 
against  it,  and  most  of  the  states  got  rid  of  their  religious  tests 
for  office-holding  at  the  first  revision  of  their  constitutions. 

The  doctrine  of  the  complete  separation  of  Church  and  State 
was  more  difficult  to  establish.  Several  of  the  colonies  had  been 
founded  for  the  express  purpose  of  providing  a  haven  for  particular 
sects,  and  in  most  of  them  the  care  of  religion  was  generally  felt 
to  be  a  sacred  duty  of  government.  At  the  beginning  of  the 
Revolution  the  Church  of  England  was  established  by  law  and 
the  clergy  of  that  church  were  maintained  out  of  the  public 
treasury  in  Virginia,  Maryland,  and  the  Carolinas.  The  same 

1  See  Massachusetts  Declaration  of  Rights,  art.  ii. 


28         STATE   GOVERNMENT  IN  UNITED  STATES 

church  was  specially  favored  by  the  colonial  governments  of  New 
York  and  New  Jersey.  In  New  England,  outside  of  Rhode 
Island,  the  Independent  or  Congregational  Churches  were 
strongly  favored,  and  the  Massachusetts  declaration  of  rights 
emphatically  proclaimed  the  necessity  of  making  suitable  pro- 
vision at  public  expense  "for  the  institution  of  the  public  worship 
of  God."  *  With  the  lapse  of  time,  however,  the  established  and 
favored  churches  had  become  less  suited  to  the  needs  of  the 
people,  and  with  the  growth  of  the  Revolutionary  spirit  the  idea 
of  a  privileged  church  came  into  conflict  with  the  principle  of  free- 
dom of  conscience.  One  of  Jefferson's  most  cherished  enterprises 
was  the  disestablishment  of  the  Church  of  England  in  Virginia. 
This  was  accomplished  immediately  after  the  close  of  the  Revolu- 
tion.2 The  assessment  of  the  citizens  for  the  support  of  religion 
by  public  authority  was  finally  abandoned  in  Massachusetts  a 
half  century  later.3  With  the  fall  of  the  privileged  churches 
came  the  rise  of  the  doctrine  of  the  complete  separation  of  Church 
and  State,  a  doctrine  which  followed  logically,  even  if  slowly, 
from  the  Revolutionary  belief  in  the  natural  nobility  of  man. 

POPULAR  SOVEREIGNTY 

The  most  important  consequence  of  the  Fathers'  belief  in  the 
natural  nobility  of  man  was  the  establishment  of  the  principle 
of  the  sovereignty  of  the  people.  This  principle  was  expressed 
in  the  Massachusetts  declaration  of  rights  as  follows :  "  The 
people  of  this  commonwealth  have  the  sole  and  exclusive  right 
of  governing  themselves,  as  a  free,  sovereign,  and  independent 
state;  and  do,  and  forever  hereafter  shall,  exercise  and  enjoy 
every  power,  jurisdiction,  and  right,  which  is  not,  or  may  not 
hereafter  be,  by  them  expressly  delegated  to  the  United  States 
of  America,  in  Congress  assembled.  "  4  It  is  not  necessary  to 
inquire  again  into  the  question  of  the  nature  of  the  American 
Union.  The  relation  between  the  several  states  and  the  United 
States  has  already  been  sufficiently  discussed.  The  people  of 

1  Art.  iiS. 

2  See  Jefferson's  Notes  on  Virginia,  Appendix  iii. 

JSee  Constitution  of  1780,  article  xi  of  the  Amendments,  adopted  in  1833. 
4  Art.  iv. 


ORIGINAL  PRINCIPLES  OF  STATE  GOVERNMENT    29 

the  several  states  were  made  free  and  independent  of  all  foreign 
states  by  the  Declaration  of  Independence  and  the  force  of  arms ; 
but  they  were  never  free  and  independent  of  one  another.  Their 
union  in  subjection  to  Great  Britain  was  succeeded  without  any 
break  by  their  union  in  association  with  one  another.  The 
several  states  are  sovereign  states  within  the  Union  only  in  the 
sense  that  they  are  mutually  equal  before  the  law  of  the  Federal 
Constitution,  and  that  they  are  independent  of  one  another 
within  the  sphere  reserved  to  the  states.  Strictly  speaking,  the 
people  of  a  single  state  are  in  no  sense  sovereign,  for  there  is 
no  power  reserved  to  them  of  which  they  may  not  be  stripped 
without  their  consent,  provided  that  the  people  of  three-fourths 
of  the  states  of  the  Union  so  will  it.  The  time-honored  phrase, 
a  sovereign  state,  is  a  flattering  fiction  to  which  the  people  of 
the  states  are  still  pleased  to  adhere ;  but  in  truth  it  means  no 
more  than  a  paraphrase  of  the  guarantee  contained  in  the  Fed- 
eral Constitution  that  each  state  shall  enjoy  a  republican  form  of 
government. 

The  essence  of  the  principle  of  the  sovereignty  of  the  people, 
as  applied  to  the  government  of  the  states,  does  not  lie  in  the  ex- 
tent of  the  powers  conferred  upon  the  state  governments  under 
the  federal  system,  but  hi  the  fact  that  those  powers  in  the  last 
analysis  reside  in  the  people  themselves.  The  Declaration  of 
Independence  was  published  "in  the  name  and  by  the  authority 
of  the  good  people  of  these  colonies."  The  Revolutionary  state 
constitutions  and  declarations  of  rights  were  all  likewise  pub- 
lished in  the  name  of  the  "good  people"  of  the  several  states. 
The  Massachusetts  declaration  of  rights  is  very  explicit  on  this 
point.  "All  power  residing  originally  in  the  people,  and  being 
derived  from  them,  the  several  magistrates  and  officers  of  govern- 
ment, vested  with  authority,  whether  legislative,  executive,  or 
judicial,  are  their  substitutes  and  agents,  and  are  at  all  times  ac- 
countable to  them."  l  The  term,  sovereignty  of  the  people, 
therefore,  as  applied  to  the  government  of  the  states,  does  not 
mean  state  sovereignty.  It  means  popular  sovereignty.  It  does 
not  even  mean  popular  sovereignty  in  the  technical  language 
of  the  political  scientist.  It  has  a  more  general  meaning,  which 
Lincoln  has  so  well  expressed  in  the  phrase,  "government  of  the 

1Art.  v. 


30         STATE  GOVERNMENT  IN  UNITED  STATES 

people,  by  the  people,  and  for  the  people."  The  chief  significance 
of  the  doctrine  of  natural  rights,  as  understood  by  the  Fathers,  is 
that  it  helped  to  establish  the  principle  that  the  governments 
of  the  American  states  should  be  governments  of,  by,  and  for  the 
people. 

THE  DOCTRINE  OF  THE  SOCIAL  COMPACT 

The  second  of  the  original  principles  of  state  government  was 
expressed  in  the  doctrine  of  the  social  compact.  This  doctrine, 
like  that  of  natural  rights,  has  been  stated  in  imperishable  lan- 
guage in  the  Declaration  of  Independence,  and  also  forms  one  of 
the  most  cherished  elements  of  the  political  creed  of  the  American 
people.  To  secure  the  rights  with  which  men  are  endowed  by 
their  Creator,  "governments  are  instituted  among  men,  deriving 
their  just  powers  from  the  consent  of  the  governed."  This 
doctrine  has  been  set  forth  with  greater  elaboration  and  precision 
in  the  preamble  to  the  Massachusetts  declaration  of  rights.  "The 
body  politic  is  formed  by  a  voluntary  association  of  individuals : 
it  is  a  social  compact,  by  which  the  whole  people  covenants  with 
each  citizen,  and  each  citizen  with  the  whole  people,  that  all  shall 
be  governed  by  certain  laws  for  the  common  good."  l  The  reason 
for  this  was  acceptably  furnished  by  Locke.  "  God,  having  made 
man  such  a  creature,  that,  in  His  own  judgment,  it  was  not  good 
for  him  to  be  alone,  put  him  under  strong  obligations  of  necessity, 
convenience,  and  inclination,  to  drive  him  into  society,  as  well  as 
fitted  him  with  understanding  and  language  to  continue  and  enjoy 
it ;"  but,  "men  being,  as  has  been  said,  by  nature  all  free,  equal, 
and  independent,  no  one  can  be  put  out  of  this  estate  and  sub- 
jected to  the  political  power  of  another  without  his  own  consent, 
which  is  done  by  agreeing  with  other  men  to  join  and  unite  into 
a  community  for  their  comfortable,  safe,  and  peaceable  living 
one  amongst  another." 

1  For  the  then  currently  accepted  explanation  of  the  doctrine  of  the  social  com- 
pact, see  John  Locke,  Second  Treatise  of  Government,  chs.  vii,  viii.  See  also,  Thomas 
Paine,  Rights  of  Man  (Am.  edit,  of  1792),  pp.  38-40.  For  a  contemporary  criti- 
cism of  the  theory  of  the  origin  of  government  in  a  social  compact,  see  Chipman's 
discussion  of  Paine's  treatment  of  this  subject,  in  his  Sketches  of  the  Principles  of 
Government  (1793),  pp.  108-110.  See  also  David  Hume,  Essays,  no.  34,  "Of  the 
Original  Contract,"  Edmund  Burke's  Reflections  on  the  Revolution  in  France,  and 
Reeves's  History  of  English  Law,  cited  by  Dicey,  Introduction  to  the  Study  of  the  Law 
of  the  Constitution,  yth  ed.,  pp.  420-421. 


ORIGINAL  PRINCIPLES  OF  STATE  GOVERNMENT    31 

The  doctrine  of  the  social  compact  therefore  really  meant  to  the 
Fathers  of  the  Revolution  the  belief  that  established  governments 
of  some  sort  were  necessary  for  the  protection  of  the  rights  of  the 
people  and  were  proper  institutions  for  the  control  of  the  people 
if  founded  upon  their  consent.  But  who  were  these  "people"? 

The  first  authoritative  answer  to  this  question  was  that  of  the 
United  States  Supreme  Court  in  the  famous  case  of  Dred  Scott. 
The  people,  said  the  court  in  substance,  are  the  citizens  of  the 
states ;  the  two  expressions  have  the  same  meaning.  Unfor- 
tunately the  Dred  Scott  decision  left  a  persistent  doubt  as  to  who 
were  citizens.  This  doubt  was  finally  cleared  up  by  the  four- 
teenth amendment  to  the  Federal  Constitution.  "All  persons 
born  or  naturalized  in  the  United  States  and  subject  to  the  juris- 
diction thereof,  are  citizens  of  the  United  States  and  of  the  state 
wherein  they  reside."  They  are  also  the  people,  in  the  consti- 
tutional sense  of  the  term,  of  the  United  States  and  of  the  state 
wherein  they  reside.  The  people  of  a  state  are  the  men,  women, 
and  children  who  make  up  the  body  of  American  citizens  in  that 
state.  Certainly  these  men,  women,  and  children,  as  a  body,  play 
no  active  part  in  the  working  of  the  political  institutions  of  the 
state.  Is  their  authority  limited  to  a  passive  acquiescence  in  the 
acts  of  those  who  assume  to  speak  in  their  name  ?  If  so,  popular 
sovereignty  is  but  a  sham,  a  convenient  fiction  with  which  the 
powers  that  be  may  cloak  with  a  garb  of  legality  the  most  arbi- 
trary and  tyrannical  designs. 

THE  RIGHT  OF  REVOLUTION 

Popular  sovereignty,  as  understood  by  the  Fathers,  was  no 
sham,  but  a  stern  reality.  The  Declaration  of  Independence 
asserts  that  "whenever  any  form  of  government  becomes  destruc- 
tive of  these  ends"  (that  is,  the  ends  to  which  "governments  are 
instituted  among  men"),  "  it  is  the  right  of  the  people  to  alter 
or  abolish  it,  and  to  institute  a  new  government,  laying  its  foun- 
dation on  such  principles,  and  organizing  its  powers  in  such  form 
as  shall  seem  most  likely  to  effect  their  safety  and  happiness." 
This  is  the  "sacred  right  of  revolution"  to  which  the  members 
of  the  Continental  Congress  appealed  "in  the  name  and  by  the 
authority  of  the  good  people"  of  the  United  Colonies.  It  is 


32 

asserted  in  a  more  philosophical  manner  in  the  Massachusetts 
declaration  of  rights  of  1780.  "Government  is  instituted  for 
the  common  good;  for  the  protection,  safety,  prosperity,  and 
happiness  of  the  people ;  and  not  for  the  profit,  honor,  or  private 
interest  of  any  one  man,  family,  or  class  of  men :  Therefore  the 
people  alone  have  an  incontestable,  unamenable,  and  indefeasible 
right  to  institute  government;  and  to  reform,  alter,  or  totally 
change  the  same,  when  their  protection,  safety,  prosperity,  and 
happiness  require  it."  *  Furthermore,  lest  this  right  of  revolu- 
tion be  rendered  worthless  by  powerful  and  lawless  usurpers, 
the  Massachusetts  declaration  of  rights  also  declared  that  "the 
people  have  a  right  to  keep  and  to  bear  arms  for  the  common 
defence."  z  The  right  of  the  people  to  keep  and  bear  arms  was 
guaranteed  in  the  same  manner  and  for  the  same  purpose  in  the 
constitutions  of  the  original  states  generally  as  well  as  in  that 
of  the  United  States.3 

There  was  nothing  revolutionary  in  the  doctrine  of  the  right 
of  revolution.  "Common  sense  teaches  us,"  wrote  Hume,  who 
will  hardly  be  classed  among  revolutionary  writers,  "that,  as 
government  binds  us  to  obedience  only  on  account  of  its  tendency 
to  public  utility,  that  duty  must  always  in  extraordinary  cases, 
when  public  ruin  would  evidently  attend  obedience,  yield  to  the 
primary  and  original  obligation,  [i.e.  the  obligation  to  pursue 
the  interests  of  society].  .  .  .  Resistance,  therefore,  being 
admitted  to  extraordinary  emergencies,  the  question  can  only 
be  among  good  reasoners,  with  regard  to  the  degree  of  necessity 
which  can  justify  resistance  and  render  it  lawful  or  commend- 
able." 4  The  majority  of  the  American  people  at  the  time  of 
the  Revolution  certainly  believed  that  the  instances  of  oppression 
cited  in  the  Declaration  of  Independence  justified  resistance. 
How  much  less  would  have  been  regarded  as  due  cause  for  violent 
revolt  we  have  no  means  of  determining.  Certainly  not  much  less, 
or  the  Revolution  would  have  begun  sooner.  Opinion  among  the 
Revolutionary  leaders  varied  greatly.  Jefferson  has  recorded  the 

1  Art.  vii.  2  Art.  xvii. 

3  Cf.  Constitution  of  the  United  States,  art.  ii  of  the  Amendments.     But  this 
right  does  not  extend  to  aliens,  nor  does  it  operate  to  prevent  a  state  legislature 
from  enacting  reasonable  regulations  concerning  the  manner  in  which  arms  shall  be 
kept  or  borne,  as  regulations  prohibiting  the  carrying  of  concealed  weapons. 

4  David  Hume,  Essays,  no.  35,  "Of  Passive  Obedience." 


ORIGINAL  PRINCIPLES  OF  STATE  GOVERNMENT    33 

sen  timent  that  "a  little  rebellion  now  and  then  is  a  good  thing.  .  .  . 
It  is  a  medicine  necessary  for  the  sound  health  of  government."  l 
Adams,  we  know  by  his  own  confession,  was  possessed  of  more 
misgiving  with  reference  to  the  value  of  a  resort  to  violence.2 
That  there  can  be  no  wrong  without  a  remedy  is  the  very  essence 
of  the  spirit  of  American  government.  If  the  remedy  cannot  be 
found  within  the  law,  it  must  be  sought  without  the  law.  The 
final  test  of  right  and  wrong  exists  in  the  individual  conscience, 
and  the  individual  must  assume  the  responsibility  for  deciding 
when  his  duty  requires  him  to  raise  his  hand  against  the  law. 

By  the  Federal  Constitution  of  1787,  the  right  of  revolution 
was  definitely  taken  away  from  the  people  of  the  separate  states 
and  reserved  exclusively  to  the  people  of  the  United  States  as  a 
whole.  Under  the  more  perfect  union  the  whole  power  of  the 
United  States  stands  ready  to  protect  the  established  govern- 
ment of  any  state  against  domestic  violence.3  There  can  be  no 
state  revolution,  therefore,  which  is  not  at  the  same  time  a 
national  revolution.  The  constitutions  of  most  of  the  states 
still  declare  that  the  people  have  at  all  times  the  right  to  "re- 
form, alter,  or  totally  change"  their  state  governments,  but 
in  several  of  these  it  is  expressly  stipulated  that  this  right  may  be 
exercised  only  "by  lawful  and  constitutional  methods."  This 
is  clearly  meant  to  exclude  a  resort  to  arms.  In  three  states, 
however,  New  Hampshire,  Maryland,  and  Tennessee,  the  doc- 
trine of  non-resistance  is  still  declared  to  be  wrong,4  which  seems 
like  an  attempt  to  preserve  the  original  right  of  state  revolution. 
This  attempt  is  certainly  beyond  the  power  of  the  people  of  a 
single  state,  since  the  right  of  revolution  was  denied  to  the  people 
of  a  single  state  by  the  people  of  the  United  States  at  the  time  of 
the  adoption  of  the  Federal  Constitution.  The  right  of  revolu- 
tion still  exists,  but  may  now  be  exercised,  consistently  with  the 
principles  of  American  government,  only  by  the  sovereign  people 
of  the  United  States.5 

1  See  his  letter  to  James  Madison  (1787).     Works  (Ford's  ed.),  iv,  p.  362. 

*  See  his  Inaugural  Address  to  Congress,  March  4,  1797. 

1  Cf.  art.  iv,  sect.  4. 

4  "  The  doctrine  of  non-resistance  against  arbitrary  power  and  oppression  is 
absurd,  slavish,  and  destructive  of  the  good  and  happiness  of  mankind,"  is  the 
language  of  the  New  Hampshire  bill  of  rights. 

'See  Luther  v.  Borden,  7  How.  i. 
D 


34         STATE  GOVERNMENT  IN  UNITED  STATES 

The  power  that  remains  to  the  people  of  the  several  states 
is  the  power  of  public  opinion.  The  nature  of  this  power  need 
not  be  discussed  here,  but  it  should  be  pointed  out  that  the 
principle  of  the  sovereignty  of  the  people,  as  understood  at  the 
time  of  the  Revolution,  was  broad  enough  to  include  all  those 
rights  which  were  felt  to  be  necessary  and  proper  for  a  free  and 
effective  expression  of  the  opinion  of  the  people.  Thus  the 
Massachusetts  declaration  of  rights  provides  for  the  liberty 
of  the  press,  freedom  of  speech  and  of  public  meeting,  and  the 
right  of  petition  for  the  redress  of  grievances,  and  for  freedom  of 
debate  in  the  legislature.1  Similar  provisions  to  protect  and 
cherish  the  power  of  public  opinion  were  inserted  in  the  constitu- 
tions of  all  the  states  and  of  the  United  States.2  The  Massa- 
chusetts declaration  of  rights  also  contains  an  express  exhorta- 
tion of  the  people  to  make  good  use  of  their  power.3  Opinions 
differed  as  to  the  practical  effect  of  such  provisions  in  the  state 
declarations  of  rights.  It  was  clearly  the  intention  of  the 
founders  of  the  original  state  governments,  however,  that  the 
will  of  the  people  should  prevail. 

THE   REIGN   OF  LAW 

Since  the  people  can  ordinarily  exercise  no  direct  power  except 
that  of  public  opinion,  the  only  sure  way  in  which  the  will  of  the 
people  can  be  made  to  prevail  is  through  the  reign  of  law,  depend- 
ing for  its  force  upon  the  consent  of  the  governed.  This  was 
what  the  framers  of  the  Massachusetts  constitution  meant  when 
they  declared  the  object  of  the  social  compact  to  be  a  covenant  of 
the  people  with  one  another,  "that  all  shall  be  governed  by 
certain  laws  for  the  common  good."  4  Hence  their  declaration 
of  rights  asserts  that  "each  individual  of  the  society  has  a  right 
to  be  protected  by  it  in  the  enjoyment  of  his  life,  liberty,  and 
property,  according  to  standing  laws." 5  The  same  principle 
was  established  in  all  the  states.  For  every  wrong  there  is  in- 
tended to  be  a  remedy  at  law.  Not  even  the  public  officer  may 

1  Arts,  xvi,  xix,  and  xxi. 

1  Constitution  of  the  United  States,  i,  6,  and  art.  i  of  the  Amendments. 

•Art.  xviii. 

4  See  Preamble  to  the  Constitution  of  Massachusetts. 

*  Art.  x.    See  also  arts,  xi  and  xxx. 


ORIGINAL  PRINCIPLES  OF  STATE  GOVERNMENT    35 

set  himself  above  the  law,  substituting  his  will  for  that  of  the 
people.  He  must  submit  like  the  rest  of  the  people  to  the  rule 
of  the  people's  law,  "to  the  end  it  may  be  a  government  of  laws 
and  not  of  men."  The  chief  significance  of  the  doctrine  of  the 
social  compact,  as  understood  by  the  Fathers,  is  that  it  helped 
to  establish  the  principle  that  the  government  of  the  American 
states  should  be  a  government  of  laws,  deriving  their  force  from 
the  consent  of  the  governed. 

The  principle  of  the  reign  of  law  has  never  been  directly  at- 
tacked in  America  except  by  those  who  are  opposed  to  the  main- 
tenance of  established  governments  of  any  sort,  but  it  has  often 
been  indirectly  attacked  by  means  of  strained  interpretations  of 
the  meaning  of  the  term,  law.  By  some  it  has  been  said  that  a 
law  is  a  rule  of  conduct  that  will  be  enforced  in  the  courts.1 
Such  an  interpretation  converts  the  reign  of  law  into  an  arbitrary 
personal  government  by  judges.  Others  have  said  that  law  is 
the  executive's  notion  of  the  will  of  the  people.2  This  inter- 
pretation converts  the  reign  of  law  into  an  arbitrary  personal 
government  by  governors,  mayors,  and  other  persons  temporarily 
entrusted  by  the  people  with  executive  authority.  The  state 
governments  were  not  originally  intended  to  be  either  judicial 
oligarchies  or  executive  tyrannies.  Law,  as  the  founders  of  the 
state  governments  used  the  term,  meant  the  will  of  the  people 
as  understood  and  formulated  in  the  shape  of  constitutions  and 
statutes,  ordinances  and  by-laws,  and  other  proper  acts  of  au- 
thority by  the  people  themselves  or  those  to  whom  the  power  of 
law-making  should  be  duly  delegated.3  Difficulties  may,  and  in 
fact  do,  arise  in  connection  with  the  interpretation  and  enforce- 
ment of  law,  when  made,  but  the  law  of  the  land  is  to  be  sought 
in  the  intent  of  the  people  or  their  representatives,  as  indicated 
by  their  formal  enactment  of  rules  for  the  good  conduct  of  society. 

The  purpose  to  establish  as  firmly  as  possible  the  reign  of  law 
is  revealed  particularly  in  the  declaration  that  "no  subject  shall 
be  arrested,  imprisoned,  despoiled,  or  deprived  of  his  property, 
immunities,  or  privileges,  put  out  of  the  protection  of  the  law, 
exiled,  or  deprived  of  his  life,  liberty  or  estate,  but  by  the  judg- 

1  James  C.  Carter,  Law,  its  Origin,  Nature,  and  Growth. 
1  Brand  Whitlock,  On  the  Enforcement  of  Law  in  Cities. 
1  Francis  Lieber,  Principles  of  Political  and  Legal  Hermeneutics. 


36         STATE  GOVERNMENT  IN  UNITED  STATES 

ment  of  his  peers,  or  the  law  of  the  land."  1  This  purpose  is 
further  revealed  in  the  declarations  against  taxation  without 
representation  2  and  in  the  articles  denning  the  relations  between 
the  civil  and  military  authorities.3  Finally  it  is  expressly  de- 
clared that  "the  power  of  suspending  the  laws,  or  the  execution 
of  the  laws,  ought  never  to  be  exercised  but  by  the  legislature,  or 
by  authority  derived  from  it,  to  be  exercised  in  such  particular 
cases  only  as  the  legislature  shall  expressly  provide  for."  4  This 
last  declaration  covers  not  only  the  suspension  of  the  habeas  cor- 
pus act,5  but  also  of  all  acts  whatsoever.  Thus  the  sovereignty 
of  the  people  was  to  be  established  through  the  reign  of  law. 

The  principle  of  the  reign  of  law,  unlike  that  of  the  sovereignty 
of  the  people,  is  one  of  the  ancient  principles  of  the  English  race, 
and  was  inherited  by  the  American  people  along  with  their  lan- 
guage.6 It  received,  however,  a  new  and  broader  meaning  in 
America  through  its  connection  with  the  principle  of  the  sover- 
eignty of  the  people.  Ours  is  a  government  of,  by,  and  for  the 
people,  but  the  people  govern  by  maintaining  the  supremacy 
of  laws,  sanctioned  by  public  opinion. 

THE  REPUBLICAN  FORM  OF  GOVERNMENT 

We  are  now  in  a  position  to  answer  the  question,  What  is  a 
republican  form  of  government?  The  question  is  important, 
since  several  cases  of  doubt  have  already  arisen  and  others  are 
likely  to  arise. 

The  obligation  imposed  upon  the  United  States  to  guarantee 
to  the  states  a  republican  form  of  government  implies  a  duty  on 
the  part  of  the  states  themselves  to  provide  governments  republi- 
can in  form.  All  the  states  had  governments  when  the  Federal 
Constitution  was  adopted,  and  all  these  state  governments  were 
left  by  the  Constitution  unchanged.  They  were  accepted 
precisely  as  they  were,  and  therefore  it  is  to  be  presumed  that 
they  were  such  as  it  was  the  duty  of  the  states  to  provide.  Hence, 

1  Massachusetts  declaration  of  rights,  art.  xii. 

*  Ibid.,  arts,  xxiii  and  x. 

1  Ibid.,  arts,  xxvii,  xxviii,  and  xvii. 

4  Art.  xx. 

6  Cf .  Constitution  of  the  United  States,  i,  9. 

6  See  A.  V.  Dicey,  Introduction  to  the  Study  of  the  Law  of  the  Constitution,  pt.  ii. 


ORIGINAL  PRINCIPLES  OF  STATE  GOVERNMENT    37 

when  some  eighty  years  later  it  was  contended  that  a  state  which 
denied  the  suffrage  to  women  was  not  republican  in  form,  the 
reply  was  conclusive  that,  although  one  of  the  original  states 
granted  votes  to  women  at  the  time  of  the  adoption  of  the  Con- 
stitution, the  others  did  not,  and  therefore  equal  suffrage  for  men 
and  women  could  not  be  essential  to  the  republican  form  of 
government  in  the  United  States.1 

The  original  state  governments  were  certainly  republican  in 
form,  but  were  they  the  only  republican  forms  permitted  by  the 
Federal  Constitution?  James  Madison,  a  leading  member  of 
the  Federal  Convention  of  1787,  observed  that  "whenever  the 
states  may  choose  to  substitute  other  republican  forms,  they  have 
a  right  to  do  so  and  to  claim  the  federal  guaranty  for  the  latter."  2 
Just  how  different  the  various  other  forms  may  be  and  still  be 
republican  within  the  meaning  of  the  Constitution,  neither 
Madison  nor  any  other  member  of  the  Federal  Convention 
ventured  to  say.  Recently  the  system  of  direct  legislation  or, 
as  it  is  often  designated,  the  initiative  and  referendum,  has  been 
assailed  on  the  ground  that  its  adoption  by  a  state  is  a  violation 
of  the  republican  form,  and  hence  forbidden  by  the  Federal  Con- 
stitution. Congress,  however,  has  not  refused  to  admit  the 
senators  and  representatives  chosen  by  the  states  which  have 
adopted  the  initiative  and  referendum,  and  that  form  of  govern- 
ment must  therefore  be  regarded  as  duly  republican.3  What 
other  innovations  in  state  government  may  be  adopted  without 
exceeding  the  limits  of  the  republican  form  can  be  likewise  de- 
termined by  experiment.  The  states  are  free  to  establish  such 
political  institutions  for  the  expression  and  execution  of  the  will 
of  the  people  thereof  as  they  see  fit,  but  the  United  States  is  the 
final  judge  of  the  fitness  of  the  institutions  so  established. 

The  constitutionality  of  procedure  for  direct  legislation  by  the 
people  was  attacked  upon  the  theory  that  the  republican  form 
of  government  is  bound  up  with  so-called  representative  govern- 
ment, that  is,  a  form  of  government  in  which  the  will  of  the 
people  is  expressed  only  through  the  instrumentality  of  their 
representatives.  Some  evidence  in  support  of  this  view  is  to 
be  found  in  the  writings  of  the  Fathers.  Madison,  whose  opinion 

1  Cf.  Minor  vs.  Happersett,  21  Wall.  167.  •  The  Federalist,  no.  43. 

1  Cf.  Pacific  States  Telephone  and  Telegraph  Co.  vs.  Oregon,  223  U.  S.,  118. 


38         STATE  GOVERNMENT  IN  UNITED  STATES 

is  inferior  to  none,  wrote  in  one  place  that  he  meant  by  the  term, 
republic,  "a  government  in  which  the  scheme  of  representation 
takes  place."  *  Jefferson  also  has  used  language  which  seems 
to  imply  that  he  deemed  representative  government  the  chief 
characteristic  of  republicanism.2  In  another  place,  however, 
Madison  seems  to  hold  a  different  opinion.3  "What  then,"  he 
inquires,  "are  the  distinctive  characters  of  the  republican  form? 
Were  an  answer  to  this  question  to  be  sought,  not  by  recurring 
to  principles,  but  in  the  application  of  the  term  by  political 
writers  to  the  constitutions  of  different  states,  no  satisfactory 
one  would  ever  be  found.  Holland,  in  which  no  particle  of  the 
supreme  authority  is  derived  from  the  people,  has  passed  almost 
universally  under  the  denomination  of  a  republic.  The  same 
title  has  been  bestowed  on  Venice,  where  absolute  power  over  the 
great  body  of  the  people  is  exercised  in  the  most  absolute  manner 
by  a  small  body  of  hereditary  nobles.  Poland,  which  is  a  mixture 
of  aristocracy  and  of  monarchy  in  their  worst  forms,  has  been 
dignified  with  the  same  appellation.  The  government  of  Eng- 
land, which  has  one  republican  branch  only,4  combined  with  an 
hereditary  aristocracy  and  monarchy,  has  with  equal  impropriety 
been  frequently  placed  on  the  list  of  republics.  These  examples, 
which  are  nearly  as  dissimilar  to  each  other  as  to  a  genuine  re- 
public, show  the  extreme  inaccuracy  with  which  the  term  has 
been  used  in  political  disquisitions." 

Madison's  own  definition  follows.  "  If  we  resort  for  a  criterion 
to  the  different  principles  on  which  different  forms  of  government 
are  established,  we  may  define  a  republic  to  be,  or  at  least  may 
bestow  that  name  on,  a  government  which  derives  all  its  powers 
directly  or  indirectly  from  the  great  body  of  the  people,  and  is 
administered  by  persons  holding  their  offices  during  pleasure,  for 
a  limited  period,  or  during  good  behavior.  It  is  essential  to  such 
a  government  that  it  be  derived  from  the  great  body  of  the  so- 
ciety, not  from  an  inconsiderable  proportion,  or  a  favored  class 

1  See  The  Federalist,  no.  10.     See  also  ibid.,  no.  14. 

2  See  his  First  Inaugural.    See  also  his  letters  to  Dupont  de  Nemours  and 
Samuel  Kercheval  (1816) ;  Works  (Ford's  ed.),  x,  pp.  24,  28. 

3  The  Federalist,  no.  39. 

4  Madison  means  the  House  of  Commons.    John  Adams  sometimes  described 
the  government  of  England  as  a  "monarchical  republic."     See  C.  M.  Walsh,  The 
Political  Science  of  John  Adams,  ch.  xviii. 


ORIGINAL  PRINCIPLES  OF  STATE  GOVERNMENT     39 

of  it ;  otherwise  a  handful  of  tyrannical  nobles,  exercising  their 
oppressions  by  a  delegation  of  their  powers,  might  aspire  to  the 
rank  of  republicans  and  claim  for  their  government  the  honorable 
title  of  republic.  It  is  sufficient  for  such  a  government  that  the 
persons  administering  it  be  appointed,  either  directly  or  in- 
directly, by  the  people ;  and  that  they  hold  their  appointment 
by  either  of  the  tenures  just  specified ;  otherwise  every  govern- 
ment in  the  United  States,  as  well  as  every  other  popular  govern- 
ment that  has  been  or  can  be  well  organized  or  well  executed, 
would  be  degraded  from  the  republican  character." 

An  entirely  different  view  is  set  forth  by  Paine.1  "The  only 
forms  of  government  are  the  democratical,  the  aristocratical, 
the  monarchical,  and  what  is  now  called  the  representative. 
What  is  called  a  republic,  is  not  any  particular  form  of  govern- 
ment. .  .  .  Republican  government  is  no  other  than  govern- 
ment established  and  conducted  for  the  interest  of  the  public. 
...  It  is  not  necessarily  connected  with  any  particular  form, 
but  it  most  naturally  associates  with  the  representative  form,  as 
being  best  calculated  to  secure  the  end  for  which  a  nation  is  at 
the  expense  of  supporting  it."  Thus  Paine  solves  the  perplexing 
problem  concerning  the  nature  of  the  republican  form  of  govern- 
ment by  denying  the  existence  of  such  a  form. 

There  is  a  better  solution  of  the  problem.  The  first  act  of  the 
convention  which  framed  the  Massachusetts  constitution  of  1 780 
was  to  vote  that  the  new  government  to  be  established  be  a 
"free  republic."  The  second  act  was  to  define  that  term  as 
follows:  "It  is  the  essence  of  a  free  republic  that  the  people  be 
governed  by  fixed  laws  of  their  own  making."  2  This  definition  is 
nothing  more  nor  less  than  a  straightforward  statement  of  the  two 
fundamental  principles  upon  which  all  the  original  state  govern- 
ments were  established,  namely,  the  principles  of  the  sovereignty 
of  the  people  and  of  the  reign  of  law.  A  republican  form  of 
government,  therefore,  is  one  in  which  the  will  of  the  people  is 
the  highest  source  of  authority  and  looks  for  its  interpretation  and 
execution  to  responsible  agents  acting  under  the  forms  of  law.3 

1  Thomas  Paine,  The  Rights  of  Man  (Am.  ed.  of  1792),  pt.  ii,  pp.  18-19. 

2  Journal  of  the  Massachusetts  Constitutional  Convention,  1779-1780,  p.  24. 

*  See  The  opinion  of  Justice  James  Wilson  in  Chishohn  vs.  Georgia,  2  Dall.,  419 
(1793)-  Cf.  Wilson's  Works,  1, 366. 


CHAPTER  III 
THE  ORIGINAL  FORMS  OF  STATE  GOVERNMENT 

THE  republican  form  of  government  obviously  admits  a  wide 
latitude  in  the  adoption  of  institutions  by  which  the  fundamental 
principles  of  republicanism  may  be  reduced  to  practice.  Al- 
though no  standard  or  uniform  type  of  republican  government 
was  adopted  by  the  states  during  the  revolutionary  period,  there 
was  substantial  agreement  concerning  the  main  features  of  such 
a  government. 

ADOPTION  OF  ORIGINAL  CONSTITUTIONS 

In  the  beginning  the  fundamental  laws  for  the  government  of 
the  states  were  systematically  and  authoritatively  set  forth  in 
special  written  documents  or  constitutions.  These  constitutions 
were  prepared  in  various  ways.  In  Virginia  the  first  constitution 
was  drafted  by  a  revolutionary  convention  in  the  spring  of  1776 
without  express  authority  from  the  people.  It  was  put  into 
effect  by  the  body  which  drafted  it,  and  which  continued  to  exist 
as  an  ordinary  legislature  exercising  authority  by  virtue  of  the 
constitution  promulgated  by  itself.  Jefferson  criticized  this 
mode  of  preparing  a  constitution  as  grossly  irregular,  since  the 
convention  had  in  effect  usurped  the  "natural  right"  of  the 
people  to  determine  for  themselves  the  conditions  of  the  "social 
compact."  *  This  constitution  endured,  however,  for  more  than 
half  a  century,  and,  though  never  formally  submitted  to  the 
people  for  their  approval,  received  the  sanction  of  public  opinion. 
The  same  mode  of  proceeding  was  adopted  in  several  of  the  origi- 
nal states.2  In  Pennsylvania  a  less  objectionable  mode  of 

1  Notes  on  Virginia  (ed.  of  1829),  pp.  125-130. 

2  Notably  in  South  Carolina  (1776)  and  New  Jersey  (1777).    In  form  the  original 
constitutions  of  these  three  states  were  in  no  wise  different  from  ordinary  statutes. 

40 


THE  ORIGINAL  FORMS  OF  STATE  GOVERNMENT    41 

proceeding  was  pursued.1  In  Connecticut  and  Rhode  Island 
the  governments  established  under  the  royal  charters  of  1662 
and  1663  were  continued  in  force  by  the  legislatures  of  1776 
without  special  action  by  the  people.* 

In  Massachusetts  the  provisional  government  established  in 
1775  continued  on  a  purely  revolutionary  basis  until  1780. 
The  legislature  of  1778  attempted  to  substitute  a  constitutional 
basis,  but  the  draft  of  a  new  constitution,  when  submitted  to  the 
people  for  their  approval  at  a  special  election,  was  rejected  by  an 
overwhelming  majority,  chiefly  on  the  ground  that  no  ordinary 
legislature  had  the  power  to  draft  a  new  constitution,  even  for 
the  purpose  of  submission  to  the  people.  The  legislature  of  1779 
therefore  submitted  to  the  people  the  proposition  whether  or 
not  they  would  elect  delegates  to  a  special  constitutional  con- 
vention. The  people  accepted  the  proposition,  whereupon  the 
legislature  called  a  special  election  of  delegates,  who  framed  a 
new  draft  of  a  constitution,  submitted  it  to  the  people  for  their 
approval,  and  adjourned  until  the  election  should  have  been 
held.  This  constitution  met  with  the  popular  approval,  and 
was  duly  proclaimed  on  their  authority  by  the  convention, 
which  thereupon  adjourned  sine  die.  Such  was  the  latest  of  the 
various  methods  by  which  the  people  of  the  original  states  ex- 
changed their  "  natural  rights  "  for  civil  rights  upon  the  secure 
basis  of  a  "  social  compact."  8 

Thus  was  developed  the  characteristic  American  practice 
with  respect  to  the  adoption  of  written  constitutions.  This 
practice,  though  not  at  first  uniform,  tended  towards  the  recog- 

In  four  other  states,  New  Hampshire  (1776),  Delaware  (1776),  New  York  (1777), 
and  Georgia  (1777),  the  original  constitutions  were  framed  by  legislative  bodies 
which  had  express  authority  therefor  from  the  people,  but  did  not  provide  for  the 
submission  thereof  in  any  manner  to  the  people.  See  W.  F.  Dodd,  The  Reiision 
and  Amendment  of  State  Constitutions,  ch.  i,  esp.  at  p.  24. 

1  See  Thomas  Paine,  The  Rights  of  Man  (ed.  of  1792),  pt.  ii,  pp.  24-25. 

The  Pennsylvania  plan  of  special  authorization  by  the  people  and  informal  sub- 
mission to  the  people  was  followed  in  Maryland  (1776),  North  Carolina  (1776), 
and  South  Carolina  (1778).  In  Massachusetts  (1778)  there  was  a  formal  submis- 
sion to  the  people  in  their  town-meetings,  but  the  document  so  submitted  was  re- 
jected by  them. 

1  See  Thayer's  Cases  on  Constitutional  Law,  i,  p.  433. 

'This  method  was  pursued  in  New  Hampshire  in  1781  and  1782,  but  the 
documents  so  submitted  were  rejected  by  the  people ;  and  again,  this  time  suc- 
cessfully, in  1783. 


42         STATE  GOVERNMENT  IN  UNITED  STATES 

nition  of  three  main  principles :  (i)  the  distinction  between  con- 
stitutional and  statutory  law ;  (2)  the  distinction  between  the 
constitutional  convention  and  the  ordinary  legislative  body  of 
the  state ;  and  (3)  the  submission  of  proposed  constitutions  to  a 
direct  vote  of  the  people. 

RESERVATION  OF   CIVIL  RIGHTS  TO  PEOPLE 

The  prime  object  of  the  adoption  of  written  constitutions  was 
to  set  forth  the  fundamental  laws  for  the  government  of  the  states, 
that  is,  the  laws  governing  the  frame  of  government  and  the  dis- 
tribution of  powers  between  the  various  depositaries  of  political 
authority,  and  thereby  securely  to  establish  the  sovereignty  of 
the  people  through  the  reign  of  law.  At  the  same  time,  con- 
scious of  the  sovereignty  of  the  people  and  relying  on  the  reign 
of  law,  the  framers  of  the  original  constitutions  seized  the  oppor- 
tunity to  write  into  them,  and  thus  put  beyond  the  power  of 
temporary  custodians  of  public  authority  to  impair  or  destroy, 
certain  ancient  privileges  of  freeborn  Englishmen,  now  at  last 
placed  for  Americans  on  the  secure  footing  of  popular  rights. 
These  rights  must  be  distinguished  from  principles  of  govern- 
ment, strictly  speaking,  although  the  two  were  often  thrown 
together  in  the  state  papers  of  the  American  Revolution.  They 
may  be  traced  through  the  great  constitutional  documents  of  the 
English  race,  Magna  Charta,  the  Petition  of  Right,  the  Bill  of 
Rights,  and  various  notable  acts  of  Parliament,  to  the  Declara- 
tion of  Independence  and  the  other  declarations  of  rights  con- 
tained in  American  Revolutionary  state  papers.  No  two  of 
these  declarations  of  rights  are  precisely  the  same.  Since,  how- 
ever, unusual  care  was  devoted  to  the  preparation  of  the  declara- 
tion of  rights  contained  in  the  Massachusetts  constitution  of 
1780,  this  document  may  be  regarded  as  the  standard  American 
declaration  of  rights.  Some  of  these  rights  have  already  been 
enumerated.  The  rest  in  the  main  were  intended  to  establish 
on  the  firmest  possible  basis  the  forms  and  procedure  of  the  Eng- 
lish common  law  as  the  basis  of  the  American  legal  system. 
Thus  trial  by  jury  was  to  be  "held  sacred."  In  addition  the 
issue  of  general  search  warrants,  the  enactment  of  ex  post  facto 
laws  and  bills  of  attainder,  the  exaction  of  excessive  bail,  and  the 


THE  ORIGINAL  FORMS  OF  STATE  GOVERNMENT    43 

imposition  of  excessive  fines  or  of  cruel  and  unusual  punishments 
were  prohibited.1  Most  of  the  guarantees  of  rights  of  this  char- 
acter were  afterwards  repeated  in  the  Federal  Constitution.2 
These  declarations  of  rights  were  in  substance  constitutional 
limitations  upon  the  powers  of  the  state  and  federal  governments, 
and  this  practice  of  limiting  the  powers  of  the  established  govern- 
ments in  state  and  nation  by  the  reservation  of  rights  to  the 
people  has  been  universally  followed  in  the  United  States.  It 
constitutes  one  of  the  most  important  of  the  contributions  of  the 
Fathers  to  the  science  of  government. 

It  should  be  observed  that  the  Massachusetts  declaration  of 
rights  makes  no  distinction  between  the  rights  of  men  in  general 
and  those  of  citizens  in  particular.  Apparently  it  was  assumed 
that  there  would  be  no  considerable  class  of  persons  within  the 
Commonwealth  who  would  not  also  be  citizens.  In  most  of  the 
original  states,  however,  there  were  such  classes  of  persons  in 
considerable  numbers,  namely,  immigrant  indentured  servants 
and  negro  slaves.  The  former  consisted  of  persons  "held  to 
service"  only  temporarily  and  destined  eventually  to  enjoy  the 
civil  and  political  rights  of  citizenship  on  the  same  terms  as 
native  citizens.  The  latter  in  several  of  the  states  were  not 
admitted  to  full  citizenship,  even  if  manumitted.  Outside  of 
the  southernmost  states,  however,  the  leaders  of  public  opinion 
seem  to  have  expected,  or  at  any  rate  desired,  the  ultimate 
abolition  of  racial  discriminations  in  American  law.3  Ulti- 
mately indeed  this  came  to  pass,  and  the  negro  was  admitted 
to  full  civil  and  political  equality  with  the  white  citizen.4  At 
the  same  time  the  growth  of  a  very  considerable  class  of  persons 
was  recognized,  who  were  not  citizens,  namely,  alien  and  un- 
naturalized  immigrants.  Accordingly  when  the  fourteenth 
amendment  to  the  Federal  Constitution  was  framed,  an  im- 
portant distinction  was  made  between  citizens  and  other  persons 
subject  to  the  jurisdiction  of  the  states.  No  state  may  abridge 
the  privileges  or  immunities  of  citizens  of  the  Unites  States,  and 
in  addition  no  state  may  deprive  any  person  of  life,  liberty,  or 

1  See  Declaration  of  Rights,  arts,  xii,  xiii,  xiv,  xv,  xxiv,  xxv,  and  xxvi. 
1  Art.  i,  sect.  9;  art.  iii,  sect.  2;   and  arts,  i  to  viii  of  the  amendments. 
1  A.  Lincoln,  Address  at  Cooper  Union,  Feb.  27,  1860. 
4  Constitution  of  the  United  States,  amendments,  arts,  xiv  and  xv. 


44         STATE  GOVERNMENT  IN  UNITED  STATES 

property  without  due  process  of  law,  nor  deny  to  any  person  the 
equal  protection  of  the  laws.  Hence  aliens  may  not  claim  as  of 
right  the  special  privileges  and  immunities  of  citizens,1  but  they 
are  entitled  to  all  the  benefits  of  the  reign  of  law  and  to  the  same 
protection  against  arbitrary  and  tyrannical  oppression  as  native 
citizens.2 

THE  RIGHT  TO  VOTE 

There  is  nothing  in  the  original  declarations  of  rights  to  indi- 
cate that  the  electoral  franchise  or  so-called  "right"  to  vote  was 
regarded  as  one  of  the  "natural,  essential  and  unalienable"  rights 
of  man  or  even  of  citizens.  Indeed  the  language  of  the  Massa- 
chusetts declaration  of  rights  seems  to  imply  that  the  suffrage 
was  a  privilege  to  be  conferred  only  upon  those  whose  claims 
thereto  could  be  proven  by  some  general  test  of  fitness;  but 
what  that  test  of  fitness  should  be  is  not  indicated.3  The  language 
of  the  Virginia  declaration  of  rights  is  more  explicit.  "All  men, 
having  sufficient  evidence  of  permanent  common  interest  with, 
and  attachment  to,  the  community,  have  the  right  of  suffrage."  4 
This  rule,  or  the  similar  rule  laid  down  in  the  Pennsylvania  dec- 
laration of  rights,6  clearly  recognizes  a  right  to  vote,  but  also 
clearly  implies  that  that  right  extends  only  to  those  who  have 
something  at  stake  in  the  maintenance  of  the  sovereignty  of  the 
people  and  the  reign  of  law,  or,  as  it  is  commonly  called,  in  the 
maintenance  of  law  and  order.  What  should  be  the  requisite 
"sufficient  evidence,"  however,  is  not  specified  in  any  declara- 
tion of  rights. 

In  the  first  constitutions  of  most  of  the  original  states,  the 
suffrage  qualifications  actually  established  were  in  fact  substan- 
tially the  same  as  those  that  had  existed  under  the  colonial 
governments  before  the  Revolution.  Indeed  this  is  expressly 
provided  in  the  Virginia  constitution,  and  consequently  the 
right  to  vote  in  that  state  was  restricted  to  the  owners  of  fifty 

1  For  example,  the  "right"  to  own  land  or  the  "right"  to  vote.     But,  as  will 
appear,  aliens  have  often  been  granted  special  privileges  of  citizenship  in  advance 
of  naturalization. 

2  See  an  act  of  Connecticut,  1776,  par.  4,  cited  by  J.  B.  Thayer,  Cases  on  Constitu- 
tional Law,  i,  p.  433. 

3  Art.  ix. 

4  Art.  vi. 

5  Art.  vii. 


THE  ORIGINAL  FORMS  OF  STATE   GOVERNMENT    45 

acres  of  uninhabited  land  or  of  twenty-five  acres  with  a  house, 
or  in  towns  to  the  owners  of  a  house  and  lot.  In  Massachusetts 
the  suffrage  was  restricted  to  "male  inhabitants  of  twenty-one 
years  of  age  and  upwards,  having  a  freehold  estate  within  the 
Commonwealth  of  the  annual  income  of  three  pounds,  or  any 
estate  of  the  value  of  sixty  pounds."  In  the  states  generally  the 
suffrage  was  restricted  to  the  owners  of  fifty  acres  of  land,  more 
or  less,  or  an  equivalent  amount  of  property  in  some  other  tangible 
form.  In  Pennsylvania,  however,  the  suffrage  was  extended  to 
all  taxpayers,  in  Georgia,  to  all  tax  payers  possessing  property 
valued  at  ten  pounds  and  also  to  "mechanics,"  and  in  Vermont, 
which  copied  the  article  of  the  Pennsylvania  declaration  of  rights 
relating  to  the  suffrage,  the  vote  was  granted  to  "every  man  .  .  . 
who  is  of  a  quiet  and  peaceable  behavior  and  will  take  the  fol- 
lowing oath  (or  affirmation),"  called  the  freeman's  oath:  "I 
solemnly  swear,  by  the  ever  living  God  (or  affirm,  in  the  presence 
of  Almighty  God),  that  whenever  I  am  called  to  give  my  vote  or 
suffrage,  touching  any  matter  that  concerns  the  State  of  Ver- 
mont, I  will  do  it  so,  as  in  my  conscience,  I  shall  judge  will 
most  conduce  to  the  best  good  of  the  same,  as  established  by 
the  constitution,  without  fear  or  favor  of  any  man." 

This  is  the  closest  approach  to  manhood  suffrage  to  be  found 
in  any  state  under  the  original  state  constitutions.  In  Virginia, 
Jefferson  tells  us,  "  the  majority  of  the  men  in  the  state,  who  pay 
and  fight  for  its  support,  are  unrepresented  in  the  legislature ; 
the  roll  of  freeholders  entitled  to  vote  not  including  generally 
the  half  of  thoseon  the  roll  of  the  militia,  or  of  the  tax-gatherers."1 
In  Massachusetts,  it  has  been  estimated,  approximately  sixteen  or 
seventeen  per  cent  of  the  population  were  entitled  to  vote,  that  is, 
about  three-fourths  of  the  adult  males.2  In  Pennsylvania  and 
Vermont  the  proportion  of  the  adult  males  entitled  to  vote  must 
have  been  larger,  but  in  the  other  northern  states  the  franchise 
was  restricted  to  nearly  the  same  extent  as  in  Massachusetts, 
and  Virginia  was  fairly  typical  of  conditions  in  the  South.3 

1  Notes  on  Virginia,  ch.  xiii. 

1 J.  F.  Jameson,  "Did  the  Fathers  vote?"  in  the  New  England  Magazine,  Jan. 
1800. 

*  In  Georgia,  however,  there  was  a  comparatively  low  property  qualification,  and 
in  North  Carolina  there  was  only  a  tax-paying  qualification  for  electors  of  members 
of  the  lower  house  of  the  legislature. 


46         STATE  GOVERNMENT  IN  UNITED  STATES 

Jefferson,  in  his  plan  of  a  constitution  for  Virginia,  drafted  in 
1783,  when  it  was  supposed  by  him  that  a  constitutional  con- 
vention would  be  shortly  summoned,  advocated  that  the  fran- 
chise be  conferred  on  all  free  male  citizens  of  full  age  and  sound 
mind,  who  should  reside  in  any  county  of  the  state  for  one  year 
preceding  an  election  or  who  should  possess  real  property  therein, 
or  be  enrolled  in  the  militia.  This  would  have  been  substan- 
tially the  same  as  manhood  suffrage  with  apparently  the  possi- 
bility of  plural  votes  for  land-owners,  unless  the  elections  in  all 
counties  should  be  held  on  the  same  day.  This  plan,  however, 
came  to  nothing.  The  franchise  provided  for  the  Northwest 
Territory  under  the  Ordinance  of  1787,  which  also  represented 
Jefferson's  ideas  of  sound  public  policy,  was  restricted  to  the 
owners  of  fifty  acres  of  land.  Under  the  conditions,  especially 
the  land  policy,  then  prevailing  in  the  old  Northwest,  this  fran- 
chise confined  the  use  of  the  ballot  to  settlers  of  some  substance, 
and  without  doubt  accurately  expressed  the  public  opinion  of 
the  time  with  respect  to  the  composition  of  the  electorate. 

In  short,  the  principle  of  manhood  suffrage  was  not  among 
the  original  principles  of  state  government.  It  was  not  incon- 
sistent with  them,  however,  nor  was  the  admission  of  women  to 
the  electoral  franchise  inconsistent  with  the  principles  upon 
which  the  original  state  electorates  were  constructed.  Indeed, 
in  New  Jersey  properly  qualified  women  were  allowed  to  vote 
for  a  number  of  years  after  the  close  of  the  Revolution.  In 
general,  however,  the  franchise  was  limited  to  men  possessing 
at  least  homesteads  of  their  own,  or  equivalent  amounts  of 
stock  in  trade,  and  thereby  gaining  independent  livelihoods. 
The  wage-earning  classes  were  for  the  most  part  excluded  from 
the  electorate.  This  exclusion  did  not  affect  so  large  a  propor- 
tion of  the  people  as  it  would  to-day.  But  it  restricted  the  use 
of  the  ballot  in  the  main  to  the  independent  farmers  and  pro- 
prietors of  plantations  and  to  the  commercial  and  professional 
classes.  In  other  words,  the  people  placed  their  governments  in 
the  hands  of  the  propertied  classes,  preferring  in  practice  a 
somewhat  aristocratic  government  to  that  government  of  the 
masses  which  their  theory  of  the  natural  nobility  of  man  would 
seem  to  have  demanded. 

The  same  rules  were  acted  upon  in  the  construction  of  all  the 


THE  ORIGINAL  FORMS  OF  STATE   GOVERNMENT    47 

organs  of  state  government.  The  members  of  the  several  state 
legislatures,  the  governors  and  other  high  executive  officers,  and 
the  judiciary  were  necessarily  required  to  possess  at  least  the 
same  qualifications  as  ordinary  voters,  and  in  many  cases  the 
property  qualifications  were  considerably  greater.  Thus  in 
Massachusetts  members  of  the  lower  branch  of  the  legislature 
were  required  to  possess  real  estate  of  the  value  of  at  least  one 
hundred  pounds,  or  other  property  of  at  least  twice  that  value. 
Senators  were  required  to  possess  not  less  than  three  times  as 
much  property  as  representatives,  and  the  governor  was  re- 
quired to  possess  not  less  than  one  thousand  pounds  in  real 
estate.  Similar  real  estate  qualifications  were  required  in  New 
Hampshire  and  North  Carolina.  In  Maryland  the  qualification 
imposed  upon  the  governor  was  that  he  should  possess  five 
thousand  pounds  hi  lawful  money,  and  in  South  Carolina  the 
sum  was  fixed  at  ten  thousand  pounds.  In  the  remaining  states 
the  theory  of  government  by  a  governing  class  was  not  pushed 
so  far.  In  all,  nevertheless,  the  fundamental  principle  obtained 
that  government  is  a  delegated  and  limited  trust,  that  all  au- 
thority not  conferred  is  reserved,  and  that  in  fact  there  are 
grave  questions,  lying  deeper  than  the  ordinary  forms  of  govern- 
ment, and  over  which  government  in  none  of  its  branches  has 
just  control.  Indeed,  unless  this  principle  had  been  recognized, 
some  of  the  original  state  governments  would  not  have  been 
people's  governments  at  all,  but  oligarchies  based  upon  wealth 
and  masquerading  under  republican  forms. 

THE  DIVISION  OF  POWERS 

The  principle  of  the  division  of  powers  was  set  forth  in  the 
Massachusetts  declaration  of  rights  as  follows :  "In  the  govern- 
ment of  this  commonwealth  the  legislative  department  shall 
never  exercise  the  executive  and  judicial  powers  or  either  of 
them;  the  executive  shall  never  exercise  the  legislative  and 
judicial  powers  or  either  of  them ;  the  judicial  shall  never  exer- 
cise the  legislative  and  executive  powers  or  either  of  them :  to 
the  end  it  may  be  a  government  of  laws  and  not  of  men." 
The  constitution  of  New  Hampshire,  adopted  in  1783,  declared 

1  Art.  xxx. 


48         STATE  GOVERNMENT  IN  UNITED  STATES 

that  "the  legislative,  executive,  and  judicial  [powers]  ought  to 
be  kept  as  separate  from,  and  independent  of,  each  other  as  the 
nature  of  a  free  government  will  admit,  or  as  is  consistent  with 
that  chain  of  connection  that  binds  the  whole  fabric  of  the  con- 
stitution in  one  indissoluble  bond  of  union  and  amity."  Mary- 
land adopted  the  maxim  in  the  most  unqualified  terms,  declar- 
ing that  "the  legislative,  executive  and  judicial  powers  of  govern- 
ment ought  to  be  forever  separate  and  distinct  from  each  other." 
Six  of  the  twelve  states,  which  adopted  new  constitutions  during 
the  Revolutionary  period,  that  is,  all  of  the  states  which  adopted 
declarations  of  rights  with  the  exception  of  Pennsylvania  and 
Vermont,  explicitly  affirmed  the  doctrine  of  the  division  of 
powers. 

There  was  no  attempt,  however,  at  a  philosophical  definition 
of  these  three  kinds  of  powers.  The  fact  is,  that  the  Fathers  did 
not  know  themselves  exactly  what  they  meant  by  these  terms. 
Locke,  one  of  the  first  writers  to  speak  of  three  powers,  specifies 
the  legislative  or  law-making  power,  the  executive  or  law- 
enforcing  power,  and  the  federative  power  or  power  of  treating 
on  behalf  of  a  state  with  other  states.  Clearly  this  is  not  the 
division  of  powers  in  the  minds  of  the  framers  of  the  original 
state  constitutions.  Jefferson  appreciated  the  difficulty  when 
he  attempted  to  draft  a  model  constitution  for  the  state  of  Vir- 
ginia.1 "By  executive  powers,"  he  observed,  "we  mean  no 
reference  to  those  powers  exercised  under  our  former  govern- 
ment by  the  crown  as  its  prerogative,  nor  that  these  shall  be 
the  standard  of  what  may  or  may  not  be  deemed  the  rightful 
powers  of  the  governor.  We  give  him  those  powers  only,  which 
are  necessary  to  execute  the  laws  (and  administer  the  govern- 
ment) and  which  are  not  in  their  nature  either  legislative  or 
judiciary.  The  application  of  this  idea  must  be  left  to  reason." 
Jefferson  did  not  attempt  to  elaborate  further  the  idea  which 
he  declared  should  be  left  to  reason,  although  he  did  expressly 
deny  to  the  governor  a  number  of  royal  prerogative  powers, 
such  as  erecting  courts,  offices,  boroughs,  corporations,  fairs, 
markets,  ports,  etc.  Paine  subsequently  made  the  attempt  and 
reached  the  conclusion  that  notwithstanding  "it  has  been  cus- 
tomary to  consider  government  under  three  distinct  heads,  the 

1  See  Notes  on  Virginia,  Appendix  ii. 


THE  ORIGINAL  FORMS  OF  STATE   GOVERNMENT    49 

legislative,  the  executive,  and  the  judicial,  if  we  permit  our 
judgment  to  act  unincumbered  by  the  habit  of  multiplied  terms, 
we  can  perceive  no  more  than  two  divisions  of  power  .  .  .  that 
of  legislating  or  enacting  laws,  and  that  of  executing  or  adminis- 
tering them.  .  .  .  That  which  is  called  the  judicial  power,  is 
strictly  and  properly  the  executive  power.  .  .  ."  1 

Although  no  successful  attempt  at  a  philosophical  definition 
of  the  three  kinds  of  powers  seems  to  have  been  made  by  the 
framers  of  the  original  state  constitutions,  there  is  no  doubt 
that  such  a  definition  is  possible.2  The  two  main  functions  of 
government  distinguished  by  Paine  may  be  described  respec- 
tively as  the  functions  of  politics  and  of  administration.  The 
former  has  to  do  with  policies  or  expressions  of  the  state  will. 
The  latter  has  to  do  with  the  execution  of  these  policies.  Officers 
entrusted  with  the  execution  of  the  state  will,  however,  may  be 
further  distinguished  as  judicial  officers  and  administrative 
officers  proper.  The  former  have  merely  to  decide  what  is  the 
law  applicable  to  the  facts  brought  before  them  in  specific  cases, 
involving  controversies  between  private  individuals  or  between 
private  individuals  and  government  officers  concerning  their 
rights  under  the  law.  The  latter  must  determine,  of  course, 
what  is  the  law,  but  also  they  must  decide  whether,  in  cases 
where  their  legal  powers  are  sufficient,  it  is  wise  to  act.  The 
former  consider  justice  only,  the  latter  justice  and  expediency. 
Now  it  is  likely  that  this  is  what  the  Fathers  had  in  mind  when 
they  declared  their  belief  in  the  existence  of  three  kinds  of  gov- 
ernmental powers.  The  important  matter,  however,  is  their 
further  belief  that  tyranny  became  possible  only  when  these 
three  kinds  of  powers  were  joined  in  the  same  hands. 

"The  accumulation  of  all  powers,  legislative,  executive  and 
judiciary,  in  the  same  hands,  whether  of  one,  a  few,  or  many, 
and  whether  hereditary,  self-appointed,  or  elective,"  wrote  Madi- 
son, "may  justly  be  pronounced  the  very  definition  of  tyranny."  3 
This  belief  is  clearly  set  forth  in  Jefferson's  criticism  of  the  first 

1  Thomas  Paine,  The  Rights  of  Man,  pt.  ii,  p.  33.    See,  for  a  recent  and  conclu- 
sive statement  of  the  same  thesis,  F.  J.  Goodnow,  Politics  and  Administration. 
1  F.  J.  Goodnow,  Principles  of  the  Administrative  Law  of  the  United  States,  bk.  i, 

ch.i. 

'See  Tht  Federalist,  no.  47  (Ford's  ed.). 

E 


50         STATE   GOVERNMENT  IN  UNITED  STATES 

state  government  established  in  Virginia.  That  government,  as 
has  been  shown,  was  established  by  the  legislature  of  the  state, 
and  was  put  into  operation  without  reference  to  the  people  of 
the  state.  The  constitution  not  only  emanated  from  the  legis- 
lature, but  committed  to  the  legislature  the  election  of  both 
executive  and  judiciary.  It  could  be  repealed  at  any  time  by 
the  legislature,  at  least  many  persons  then  so  supposed,  and  any 
alterations  could  be  made  at  the  will  thereof,  even  to  putting  all 
power  into  the  hands  of  a  single  dictator.  As  Jefferson  remarked, 
"one  hundred  and  seventy-three  despots"  (the  number  of  mem- 
bers of  the  legislature)  "would  surely  be  as  oppressive  as  one."  1 
If,  however,  the  three  kinds  of  powers  were  distributed  among 
three  separate  and  distinct  departments  of  government,  and  if 
the  constitution  itself  were  made  by  a  special  organ  of  govern- 
ment and  were  dependent  for  its  validity  upon  the  express  ap- 
proval of  the  electorate,  the  danger  of  tyranny  through  the  con- 
solidation of  all  powers  in  the  hands  of  a  single  person  or  body 
of  persons  would  be  destroyed.  The  principle  of  the  division  of 
powers  among  three  departments  of  government  was  first  logi- 
cally worked  out  in  the  constitution  of  New  York,  adopted  by  a 
revolutionary  convention  in  1777.  The  principle  of  the  division 
of  powers,  and  the  practice  of  framing  a  constitution  by  a  special 
convention  subject  to  the  express  approval  of  the  electorate, 
were  first  combined  by  the  people  of  Massachusetts  in  1779- 
1780.  This  combination  forms  the  corner  stone  of  constitutional 
government  in  the  United  States. 

The  doctrine  of  the  division  of  powers  originated  with  Mon- 
tesquieu, or  at  least  was  first  brought  by  him  to  the  notice  of 
eighteenth-century  political  philosophers.  Montesquieu,  how- 
ever, as  Madison  has  clearly  pointed  out,  did  not  mean  that  the 
three  departments  of  government  should  have  no  partial  agency 
in,  or  control  over,  the  acts  of  each  other.  Neither  the  govern- 
ment of  England  nor  that  of  any  of  the  original  American  states 
was  established  upon  such  a  principle.  Montesquieu's  meaning 
simply  was,  "that  where  the  whole  power  of  one  department  is 
exercised  by  the  same  hands  which  possess  the  whole  power  of 
another  department,  the  fundamental  principles  of  a  free  con- 
stitution are  subverted."  2  Hence  the  doctrine  of  the  division 

1  See  Jeffcrson'a  Notes  on  Virginia,  ch.  xiii.  '  See  The  Federalist,  no.  47. 


THE  ORIGINAL  FORMS  OF  STATE  GOVERNMENT    51 

of  powers,  as  a  maxim  of  government,  "does  not  require  that  the 
legislative,  executive,  and  judiciary  departments  should  be 
wholly  unconnected  with  each  other."  On  the  contrary,  "un- 
less these  departments  be  so  far  connected  and  blended  as  to 
give  to  each  a  constitutional  control  over  the  others,  the  degree 
of  separation  which  the  maxim  requires,  as  essential  to  a  free 
government,  can  never  in  practice  be  duly  maintained."  l 

EFFECTIVE  DIVISIONS  OF  POWERS 

The  New  York  constitution  of  1777  was  framed  strictly  in 
accord  with  these  principles.  The  legislative  power  was  vested 
in  the  first  instance  in  a  legislature  composed  of  two  houses. 
The  legislature,  however,  exercised  several  important  non-legis- 
lative powers.  For  example,  it  elected  the  treasurer  of  the 
state,  and  the  lower  house  also  elected  four  members  of  the 
upper  house  to  act  under  the  presidency  of  the  governor  as  a 
council  of  appointment.  The  chancellor  and  judges  of  the  su- 
preme court  and  all  executive  officers,  except  the  governor  and 
lieutenant-governor,  who  were  elected  by  the  people,  and  the 
treasurer,  were  appointed  by  the  governor  subject  to  the  consent 
of  this  council.  The  lower  branch  of  the  legislature  also  pos- 
sessed the  power  to  impeach  any  executive  or  judicial  officer, 
and  the  upper  house  together  with  the  chancellor  and  judges  of 
the  supreme  court  were  constituted  the  court  for  the  trial  of 
impeachments.  The  governor  was  commander-in-chief  of  the 
state  militia  and  navy,  and  possessed  the  prerogative  powers  of 
convening  and  proroguing  the  legislature,  provided  such  pro- 
rogations should  not  exceed  sixty  days  in  the  space  of  any  one 
year,  and  of  granting  reprieves  and  pardons  to  persons  convicted 
of  crimes  other  than  treason  and  murder.  In  the  latter  cases  he 
was  empowered  to  suspend  execution  of  sentence  until  it  should 
be  reported  to  the  legislature  at  the  next  session,  when  the  latter 
might  either  pardon,  or  direct  the  execution  of  the  criminal,  or 
grant  a  further  reprieve.  The  governor  was  further  bound  to 
take  care  that  the  laws  be  faithfully  executed,  to  expedite  all 
such  measures  as  should  be  resolved  upon  by  the  legislature, 
and  to  inform  the  latter  at  every  session  of  the  condition  of  the 

1  Ibid.,  no.  48. 


52         STATE  GOVERNMENT  IN  UNITED  STATES 

state  and  to  recommend  such  matters  to  their  consideration  as 
should  appear  to  him  to  concern  its  good  government,  welfare, 
and  prosperity.  The  governor,  together  with  the  chancellor 
and  judges  of  the  supreme  court,  was  made  a  council  of  revision, 
to  which  was  committed  the  duty  of  examining  and,  if  necessary, 
revising  all  acts  of  the  legislature,  and  returning  to  the  legisla- 
ture, with  its  objections  in  writing,  all  acts  which  it  deemed  im- 
proper to  become  laws  of  the  state  in  the  form  in  which  they 
were  passed  by  the  legislature.  The  legislature,  however,  might 
reenact  such  laws  in  their  original  form  by  two-thirds  majorities 
in  each  branch.  The  chancellor  and  judges  of  the  supreme 
court,  once  appointed,  should  hold  office  during  good  behavior 
or  until  they  should  attain  the  age  of  sixty  years.  Military 
officers  should  be  commissioned  by  the  governor  and  hold  office 
during  his  pleasure.  Other  officers  should  enjoy  such  tenure  of 
office  as  should  be  provided  by  statute. 

Obviously  here  was  not  a  separation,  but  a  confusion,  of  the 
three  kinds  of  governmental  powers.  The  powers  of  each  de- 
partment of  government  were  defined  clearly  enough,  but  they 
were  not  all  of  one  kind.  The  powers  of  each  of  the  three  kinds 
were  granted  clearly  enough,  but  they  were  not  granted  to  the 
three  departments  respectively.  There  was  a  division  of  powers 
which  gave  powers  of  each  kind  to  each  of  the  three  departments 
and  duties  of  all  three  kinds  to  all  of  the  departments. 

The  Massachusetts  constitution  of  1780  was  framed  upon 
similar  principles.  The  two  houses  of  the  legislature  in  joint 
session  were  empowered  to  elect  the  secretary  of  the  common- 
wealth, the  treasurer,  the  commissary-general,  notaries  public, 
and  naval  officers.  All  other  executive  officers  and  all  judicial 
officers  were  to  be  appointed  by  the  governor  "by  and  with  the 
advice  and  consent  of  the  council/'  a  body  of  nine,  chosen  from 
the  senate  by  the  two  houses  of  the  legislature  in  joint  session, 
and  the  lieutenant-governor.  The  governor  presided  at  meetings. 
The  governor  was  granted  the  power  of  pardoning  offenses,  with 
the  consent  of  the  council,  and  of  withholding  his  approval  from 
acts  of  the  legislature  regardless  of  the  advice  of  the  council. 
Acts  not  approved  by  the  governor  should  be  returned  to  the 
legislature,  and,  as  in  New  York,  might  be  reenacted  by  the  latter 
by  two-thirds  majorities  in  both  branches.  All  judicial  officers 


THE  ORIGINAL  FORMS  OF  STATE  GOVERNMENT    53 

were  authorized  to  hold  their  offices  during  good  behavior,  pro- 
vided nevertheless  that  the  governor,  with  the  consent  of  the 
council,  might  remove  them  upon  the  address  of  both  houses  of 
the  legislature.  Each  branch  of  the  legislature,  as  well  as  the 
governor  and  council,  were  granted  authority  to  require  the 
opinions  of  the  judges  of  the  supreme  court  "upon  important 
questions  of  law  and  upon  solemn  occasions."  The  power  to 
bring  impeachments  was  vested  in  the  lower  house  of  the  legis- 
lature, and  the  upper  house  was  constituted  the  court  for  the 
trial  thereof.  All  causes  of  marriage,  divorce,  and  alimony,  and 
all  appeals  from  the  judges  of  probate  were  to  be  heard  by  the 
governor  and  council,  until  the  legislature  should  make  other  pro- 
vision therefor  by  law.  Thus  the  legislature  exercised  executive 
and  judicial  powers,  the  governor  exercised  legislative  and  judicial 
powers,  and  the  judiciary  exercised  legislative  and  executive 
powers.  Each  department,  however,  exercised  only  those 
powers  granted  to  it  by  the  constitution. 

The  New  Hampshire  constitution  of  1783  was  very  similar 
in  form  to  that  of  Massachusetts,  and,  except  for  the  omission 
of  the  gubernatorial  veto  power,  embodied  the  principle  of  the 
division  of  powers  in  the  same  way. 

INEFFECTIVE  DIVISIONS  OF  POWERS 

The  constitutions  of  Rhode  Island  and  Connecticut  were  never 
intended  to  embody  the  principle  of  the  division  of  powers. 
They  were  indeed  precisely  the  same  as  the  royal  charters  under 
which  those  two  colonies  had  been  governed  for  more  than  a  cen- 
tury. These  charters  were  nothing  more  nor  less  than  the  char- 
ters of  business  corporations,  and  provided  a  form  of  government 
such  as  any  trading  company  of  the  seventeenth  century,  enjoy- 
ing special  privileges  granted  by  the  crown,  might  have  possessed. 
The  important  difference  between  the  governments  of  Rhode 
Island  and  Connecticut  and  that  of  the  English  East  India  Com- 
pany, for  example,  lay  in  the  fact  that  the  former  admitted  to  the 
privileges  of  the  charter  (admitted  as  freemen  of  the  company, 
they  said ;  we  should  say,  stockholders)  all  actual  settlers  of  good 
reputation  and  independent  means,  whereas  the  latter  restricted 
the  benefits  of  the  chartered  privileges  to  the  original  investors 


54         STATE  GOVERNMENT  IN  UNITED  STATES 

(merchant  adventurers,  they  called  themselves)  and  their  suc- 
cessors. In  Rhode  Island  and  Connecticut,  the  governor, 
deputy-governor,  council  (board  of  directors  or  senate),  and 
house  of  representatives  (stockholders'  meeting  by  deputy  in- 
stead of  by  person)  were  elected  by  the  people  (freemen  of  the 
company,  or  voters  of  the  commonwealth).  The  judiciary  and 
the  remaining  executive  officers  were  elected  by  the  legislature, 
and  held  office  for  terms  of  only  one  year.  The  judiciary  exer- 
cised judicial  functions  only,  and  the  executive  none  but  execu- 
tive functions.  The  principle  of  the  separation  of  powers,  how- 
ever, as  expounded  by  Madison,  was  hardly  recognizable,  for 
there  was  no  effective  check  to  the  authority  of  the  legislature. 
The  charter  or  constitution  was,  to  be  sure,  the  supreme  law  of 
the  state,  but  the  legislature  was  without  an  important  rival  as 
the  interpreter  thereof,  and  could  rule  practically  uncontrolled 
except  by  public  opinion.  In  short,  the  governments  of  these 
two  states  were  representative  democracies  characterized  by  the 
legal  supremacy  of  their  legislatures.1 

In  the  remaining  states  where  the  framers  of  the  original  con- 
stitutions professed  a  belief  in  the  doctrine  of  the  division  of 
powers,  New  Jersey,  Delaware,  Maryland,  Virginia,  North  Caro- 
lina, South  Carolina,  and  Georgia,  the  application  of  the  doctrine 
left  even  more  to  be  desired  than  in  Rhode  Island  and  Connec- 
ticut. The  governor  was  universally  elected  by  the  legislature, 
and,  except  in  South  Carolina  and  Delaware,  his  term  of  office 
was  restricted  to  one  year.  In  addition,  in  the  six  southern 
states,  restrictions  were  placed  upon  his  eligibility  for  reelection. 
In  every  state  there  was  an  executive  council,  chosen  except  in 
New  Jersey  by  the  legislature,  which  the  governor  was  required 
to  consult  on  all  important  matters,  and  which  in  most  cases 
incidentally  served  to  restrict  such  powers  of  appointment  and 
pardon  as  he  might  possess.  In  New  Jersey  the  upper  branch 
of  the  legislature,  the  legislative  council  as  it  was  called,  served 
as  an  executive  council.  The  power  possessed  by  the  colonial 
governors  to  dissolve  the  legislature  was  everywhere  abolished. 
The  judges  were  elected  by  the  state  legislature  in  all  these 

1  See  W.  C.  Morey  "The  Genesis  of  a  Written  Constitution,"  Ann.  Am.  Acad. 
Pol.  Soc.  Set.,  i,  4  (April,  1891),  and  also,  "The  First  State  Constitutions,"  ibid., 
iv,  2  (Sept.  1893). 


THE  ORIGINAL  FORMS  OF  STATE  GOVERNMENT    55 

states  except  Maryland,  where  they  were  appointed  by  the  gov- 
ernor with  the  consent  of  the  council.  This  mode  of  selection 
really  amounted  to  indirect  legislative  appointment,  since  the 
governor  and  council  were  elected  annually  by  the  legislature. 
In  all  these  states  except  Georgia,  where  the  legislature  consisted 
of  only  a  single  house,  the  executives  and  judiciary  could  be  im- 
peached by  the  lower  branch  of  the  legislature  and  removed 
from  office  upon  conviction  by  the  upper.  In  Delaware,  Mary- 
land, and  South  Carolina  they  could  be  removed  from  office  by 
the  governor  upon  address  by  both  branches  of  the  legislature. 
The  judges  were  usually  entitled  to  hold  office,  nominally  at 
least,  during  good  behavior,  but  in  New  Jersey  the  judges  were 
chosen  for  terms  of  seven  years,  and  in  Georgia  they  were  chosen 
annually.  Thus,  whether  executive  and  judicial  officers  were 
appointed  by  the  governor  or  elected  by  the  legislature,  the 
effect  was  the  same,  namely,  to  concentrate  all  powers  ultimately 
in  the  legislature.  In  South  Carolina,  indeed,  by  the  constitu- 
tion of  1776  a  power  of  absolute  veto  over  legislation  was  granted 
to  the  governor,  but  this  was  withdrawn  when  the  first  constitu- 
tion was  revised  by  the  legislature  two  years  later.  In  none  of 
the  other  states  was  there  any  power  of  executive  veto.1  In 
short,  the  legislatures,  under  the  original  constitutions  of  these 
states,  were  not  seriously  limited  either  by  the  executives  or  by 
the  courts.2  They  had  all  the  law-making  power  in  their  hands 
and  they  made  the  very  constitutions  themselves.  Unchecked 
by  either  executive  or  judicial  branches  of  the  government,  they 
practically  ruled  supreme.  Well  might  Jefferson  exclaim  that 
this  was  "an  elective  despotism"  and  "not  the  government  we 
fought  for."  3 

The  doctrine  of  the  division  of  powers,  as  we  have  seen,  meant 
no  more  than  that  no  one  of  the  three  departments  of  govern- 
ment should  exercise  the  constitutional  powers  of  another  depart- 
ment. In  this  sense  of  the  term,  the  government  of  Virginia 
was  a  government  of  divided  powers,  for  the  declaration  of  rights 

Jefferson,  however,  in  his  plan  of  a  government  for  Virginia  (1783)  proposed 
a  council  of  revision  with  an  organization  and  powers  much  like  that  of  New  York. 
See  his  Notes  on  Virginia,  app.  ii. 

1  Cf.  J.  Allen  Smith,  The  Spirit  of  American  Government,  ch.  ii. 

1  See  his  Notes  on  Virginia,  ch.  xiii. 


56         STATE  GOVERNMENT  IN  UNITED  STATES 

explicitly  stated  that  the  government  should  be  one  of  divided 
powers,  and  the  constitution  enumerated  the  powers  which  each 
of  the  three  departments  was  to  enjoy.  "But  no  barrier  was 
provided  between  these  several  powers.  The  judiciary  and 
executive  members  were  left  dependent  on  the  legislative,  for 
their  subsistence  in  office,  and  some  of  them  for  their  continuance 
in  it.  If,  therefore,  the  legislative  assumes  executive  and  judi- 
ciary powers,  no  opposition  is  likely  to  be  made ;  nor,  if  made, 
can  it  be  effectual ;  because  in  that  case  they  may  put  their  pro- 
ceedings into  the  form  of  an  act  of  assembly,  which  will  render 
them  obligatory  on  the  other  branches.  They  have  accordingly, 
in  many  instances,  decided  rights  which  should  have  been  left 
to  judiciary  controversy;  and  the  direction  of  the  executive, 
during  the  whole  time  of  their  session,  is  becoming  habitual  and 
familiar."  l  It  thus  becomes  clear  that,  as  Madison  observed, 
"a  mere  demarcation  on  parchment  of  the  constitutional  limits 
of  the  several  departments  is  not  a  sufficient  guard  against  those 
encroachments  which  lead  to  a  tyrannical  concentration  of  all 
the  powers  of  government  in  the  same  hands." 

THE  CENSORIAL  SYSTEM 

In  Pennsylvania  the  framers  of  the  original  constitution  of 
1776  did  not  expressly  affirm  their  belief  in  the  doctrine  of  the 
division  of  powers,  but  they  practically  affirmed  it,  at  least  in 
part,  by  providing  that  the  supreme  legislative  power  should  be 
vested  in  a  house  of  representatives  and  the  supreme  executive 
power  in  a  president  and  council.  The  former  was  granted  all 
the  powers  "necessary  for  the  legislature  of  a  free  state  or  com- 
monwealth :  But  they  shall  have  no  power  to  add  to,  alter, 
abolish,  or  infringe  any  part  of  this  constitution."  The  supreme 
executive  council  consisted  of  twelve  persons  elected  by  the  free- 
men of  the  city  of  Philadelphia  and  of  the  counties,  one  from  the 
city  and  one  from  each  of  the  counties,  for  terms  of  three  years, 
one  third  retiring  annually.  The  governor  was  chosen  annually 
from  among  the  members  of  the  council  by  the  house  of  represen- 
tatives and  council  in  joint  session,  but  had  no  greater  powers 

1  Jefferson,  Notes  on  Virginia,  ch.  xiii. 

2  The  Federalist,  no.  48. 


57 

than  any  other  councillor.  The  council  possessed  the  ordinary 
executive  powers,  including  that  of  granting  pardons,  subject  to 
certain  exceptions,  and  also  the  power  to  lay  embargoes  during 
recesses  of  the  house  of  representatives  for  periods  not  exceeding 
thirty  days.  The  councillors  were  furthermore  charged  with  the 
duties  of  preparing  such  business  as  they  should  judge  necessary 
to  lay  before  the  house  of  representatives,  and  of  sitting  as  judges 
to  hear  cases  of  impeachment,  taking  to  their  assistance  for  ad- 
vice only  the  justices  of  the  supreme  court.  The  framers  of  this 
Pennsylvania  constitution,  however,  did  not  trust  solely  to  "a 
mere  demarcation  on  parchment  of  the  constitutional  limits  of 
the  several  departments"  to  protect  the  people  against  oppres- 
sion and  tyranny.  They  introduced  a  special  organ  of  govern- 
ment for  this  purpose,  called  the  council  of  censors. 

The  Pennsylvania  council  of  censors  was  composed  of  twenty- 
four  censors,  two  being  elected  by  the  people  of  each  of  the  eleven 
counties  and  the  city  of  Philadelphia.  The  censors  were  to  be 
chosen  every  seventh  year,  and  were  charged  with  the  duties  of 
inquiring  whether  the  constitution  had  been  preserved  inviolate, 
and  whether  the  legislative  and  executive  branches  of  govern- 
ment had  performed  their  duties  properly  without  assuming  un- 
constitutional powers.  They  were  also  to  inquire  whether  the 
public  taxes  had  been  justly  levied  and  collected,  in  what  manner 
they  had  been  spent,  and  whether  the  laws  had  been  duly  exe- 
cuted. They  were  empowered  to  send  for  persons,  papers,  and 
records,  to  pass  public  censures,  to  order  impeachments,  and  to 
recommend  to  the  legislature  the  repeal  of  such  laws  as  should 
appear  to  them  to  have  been  enacted  contrary  to  the  principles 
of  the  constitution.1  Furthermore,  they  were  empowered  to  call 
by  a  two-thirds  vote  a  constitutional  convention  to  amend  any 
article  of  the  constitution  which  might  be  defective,  explain  such 
as  might  be  thought  not  clearly  expressed,  and  add  such  as  might 
be  necessary  for  the  preservation  of  the  rights  and  happiness  of 
the  people:  "But  the  articles  to  be  amended,  and  the  amend- 
ments to  be  proposed,  and  such  articles  as  are  proposed  to  be 
added  or  abolished,  shall  be  promulgated  at  least  six  months 
before  the  day  appointed  for  the  election  of  such  convention,  for 
the  previous  consideration  of  the  people,  that  they  may  have  an 

1  Pennsylvania  Constitution  of  1776,  Art.  47. 


58         STATE  GOVERNMENT  IN  UNITED  STATES 

opportunity  of  instructing  their  delegates  on  the  subject." 
The  state  of  Vermont,  which  in  its  constitution  of  1777  followed 
in  most  respects  the  model  of  the  government  of  Connecticut, 
also  adopted  this  institution  of  a  council  of  censors.1 

APPEALS  TO  THE  PEOPLE 

In  lieu  of  such  periodical  appeals  to  the  people  to  correct  in- 
fractions of  the  constitution,  several  other  states  provided  for  ap- 
peals to  be  taken  as  occasion  should  require.  Thus  the  Massa- 
chusetts constitution  of  1780  ordered  the  legislature  to  submit  to 
a  vote  of  the  people  in  the  year  1795  the  question  whether  they 
desired  a  fresh  constitutional  convention  to  be  called,  "in  order 
the  more  effectually  to  adhere  to  the  principles  of  the  constitu- 
tion, and  to  correct  those  violations  which  by  any  means  may 
be  made  therein,  as  well  as  to  form  such  alterations  as  from  ex- 
perience shall  be  found  necessary."2  By  implication,  this  article 
recognizes  a  power  in  the  legislature  to  submit  the  question  of  a 
call  for  a  constitutional  convention  at  any  time.  In  New  Hamp- 
shire the  practice  was  established  of  taking  the  sense  of  the  voters 
every  seven  years  as  to  the  need  for  a  constitutional  convention.3 
In  Georgia  it  was  provided  that  the  legislature  should  call  a  con- 
stitutional convention  upon  the  receipt  of  petitions  from  a 
majority  of  the  counties  of  the  state  signed  by  a  majority  of 
voters  in  each  county,  specifying  the  alterations  to  be  made.4 
This  cumbersome  form  of  the  constitutional  initiative,  however, 
proved  unworkable,  and  was  omitted  from  the  constitution  of 
1789.  In  New  York,  where  the  doctrine  of  the  division  of  powers 
was  first  worked  out  in  a  logical  manner,  the  responsibility  for  the 
prevention  of  the  violation  of  the  constitution  by  the  enactment 
of  laws  "inconsistent  with  the  spirit"  thereof  was  expressly 
vested  in  the  council  of  revision,6  but  for  the  further  protection 
of  the  people  a  court  for  the  correction  of  errors  was  created, 

1  The  Vermont  council  was  composed  of  thirteen  censors,  elected  at  large  by  the 
people  of  the  whole  state,  not  by  districts  as  in  Pennsylvania.  The  history  of  these 
Councils  of  Censors  will  be  discussed  later.  See  ch.  iv. 

1  Ch.  vi,  art.  x. 

*  See  Constitution  of  1783  and  of  1792,  art.  99  (100). 

4  See  Constitution  of  1777,  art.  63. 

8  Art.  iii. 


THE  ORIGINAL  FORMS  U*   STATE  GOVERNMENT    59 

consisting  of  the  lieutenant-governor,  the  members  of  the  senate, 
the  chancellor,  and  the  judges  of  the  supreme  court.1  No  special 
arrangements  for  protection  against  violations  of  the  constitu- 
tion, either  by  appeals  to  the  people  or  otherwise,  were  made  in 
any  other  of  the  original  state  constitutions.  Apparently  the 
people  generally  put  their  trust  in  the  power  of  public  opinion 
and  the  good  faith  of  their  representatives.  Thus  in  Connecti- 
cut it  was  expressly  declared  that  "free  and  annual  elections" 
were  "  the  best  security  for  the  preservation  of  civil  and  religious 
rights  and  liberties."  2 

Jefferson's  plan  for  the  preservation  of  state  constitutions  in- 
violate was  to  provide  for  an  appeal  to  the  people,  in  the  form 
of  a  call  for  a  constitutional  convention,  whenever  two-thirds  of 
the  members  of  each  of  any  two  of  the  departments  of  government 
should  deem  it  necessary.3  Madison,  however,  had  little  confi- 
dence in  the  value  of  appeals  to  the  people,  no  matter  how  pro- 
vided. Writing  in  1788,  after  more  than  a  decade  of  experience 
with  the  governments  of  the  original  states,  he  declared  that  the 
chief  danger  of  violations  of  the  constitutions  was  to  be  appre- 
hended from  the  legislatures,  and  that  whether  the  appeals  to 
the  people  were  taken  periodically  or  occasionally,  they  did  not 
promise  adequate  relief.  A  constitutional  convention,  he  argued, 
would  be  composed  of  the  same  elements  as  a  legislature,  and 
would  be  inclined  to  take  the  same  view  of  constitutional  ques- 
tions. Even  if  the  precaution  were  taken  of  excluding  from  the 
convention  all  persons  connected  with  the  government  whose  acts 
were  to  be  reviewed,  the  result,  he  believed,  would  be  substan- 
tially the  same.4  "To  what  expedient,  then,  shall  we  finally 
resort,  for  maintaining  in  practice  the  necessary  partition  of 
power  among  the  several  departments,  as  laid  down  in  the  con- 
stitution?" "The  only  answer  that  can  be  given  is,  that  as  all 
these  exterior  provisions  are  found  to  be  inadequate,  the  defect 
must  be  supplied,  by  so  contriving  the  interior  structure  of  the 
government  as  that  its  several  parts  may,  by  their  mutual  rela- 
tions, be  the  means  of  keeping  each  other  in  their  proper  places 
.  .  .  the  great  security  against  a  gradual  concentration  of  the 
several  powers  in  the  same  department  consists  in  giving  to  those 

1  Art.  xxzii.  *  See  his  Notes  on  Virginia,  app.  ii. 

1  See  i  Poore's  Constitutions,  257.  *  The  Federalist,  nos.  49,  50. 


6o         STATE  GOVERNMENT  IN  UNITED  STATES 

who  administer  each  department  the  necessary  constitutional 
means  and  personal  motives  to  resist  encroachments  of  the 
others."  1 

THE  DOCTRINE  OF  CHECKS  AND  BALANCES 

Thus  the  doctrine  of  the  division  of  powers  becomes  the  doc- 
trine of  checks  and  balances.  As  Jefferson  himself  had  said : 
"The  powers  of  government  should  be  so  divided  and  balanced 
among  several  bodies  of  magistracy,  as  that  no  one  could  tran- 
scend their  legal  limits  without  being  effectually  checked  and  re- 
strained by  the  others."  2  But  during  the  half  dozen  years 
intervening  between  the  time  when  Jefferson  wrote  his  Notes  on 
Virginia  and  that  when  Madison  contributed  to  the  Federalist, 
a  change  was  taking  place  in  the  significance  of  the  doctrine  of 
checks  and  balances.  As  we  have  seen,  not  only  Jefferson  but 
also  those  who  framed  several  of  the  original  state  constitutions 
looked  to  the  people,  or,  strictly  speaking,  the  electorates,  as  the 
special  guardians  of  the  constitutions.  Madison,  however,  had 
discovered  something  in  the  doctrine  itself  which  rendered  super- 
fluous the  practice  of  appealing  to  the  people  to  correct  infrac- 
tions of  the  constitutions.  That  something  was  the  power  of 
judicial  review  of  unconstitutional  acts  of  legislatures  and 
executives. 

There  is  no  evidence,  as  we  have  seen,  in  the  constitution  or 
bill  of  rights  of  any  one  of  the  original  states,  that  the  judiciary 
were  originally  looked  to  by  the  Fathers  as  the  special  guardians 
of  the  constitutions.  On  the  contrary,  the  implication  is  de- 
cidedly the  other  way.  In  New  York,  for  instance,  the  judiciary 
were  certainly  expected  to  accept  the  construction  of  the  consti- 
tution adopted  by  the  council  of  revision,  or  in  the  last  instance 
by  the  court  of  errors,  a  court  in  which  the  judicial  element  was 
in  a  minority.  In  most  of  the  states,  moreover,  the  doctrine  of 
the  division  of  powers  was  either  not  logically  worked  out,  as  it 

1  The  Federalist,  no.  51. 

2  Notes  on  Virginia,  ch.  xiii.     Cf.  J.  Q.  Adams,  in  the  "Letters  of  Publicola," 
no.  vii.     "Divide  your  power  so  that  every  part  of  it  may  at  all  times  be  used  for 
your  advantage,  but  in  such  a  manner  that  your  rights  may  never  depend  upon  the 
will  of  one  man  or  body  of  men.  .  .  ."    Writings  of  J.  Q.  Adams  (Ford's  ed.), 
i,  P-  93- 


THE  ORIGINAL  FORMS  OF  STATE  GOVERNMENT    61 

was  in  New  York,  or  not  recognized  at  all.  Thus,  in  Rhode 
Island,  the  supreme  court,  in  the  celebrated  case  of  Trevett  v. 
Weeden,  decided  in  1786,  refused  to  enforce  a  legal  tender  law 
devised  to  compel  the  circulation  of  paper  money.1  The  legis- 
lature, however,  being  determined  to  have  its  will  executed, 
declined  to  reelect  those  judges  the  following  year,  and  filled 
their  places  with  others  more  subservient.  Doubtless  there  were 
not  a  few  instances  of  cases  decided  during  the  first  years  of  the 
original  state  governments  in  which  courts  held  acts  of  legisla- 
tures unconstitutional.2  The  governments  of  the  original  states, 
however,  were  for  the  most  part  governments  characterized  by 
the  supremacy  of  the  legislature,  and  if  judicial  interference  with 
legislative  acts  was  sometimes  tolerated,  the  operation  of  the 
governmental  system  was  not  consciously  altered  thereby.  In 
Massachusetts  the  declaration  of  rights  laid  unusual  stress  on  the 
importance  of  the  independence  of  the  judiciary.3  The  consti- 
tution further  provided  for  the  independence  of  judges  by  declar- 
ing that  they  should  receive  fixed  and  honorable  salaries,  which 
should  not  be  diminished  during  the  term  of  the  individual  judge. 
Yet  the  governor,  with  the  consent  of  his  council,  if  supported 
by  a  bare  majority  of  the  legislature,  could  remove  any  judge 
without  trial.4  Moreover,  the  executive  and  the  legislative 
branches  were  authorized  to  "require  the  opinions  of  the  jus- 
tices of  the  supreme  judicial  court  upon  important  questions  of 
law  and  upon  solemn  occasions."5  In  cases  of  doubt  concerning 
the  true  meaning  of  the  constitution,  the  judiciary  could  thus  be 
required  to  express  their  views  before  the  other  branches  acted. 
Doubtless  it  was  intended  that  the  law-making  authorities,  the 
legislature  and  governor,  should  give  due  consideration  to  the 
opinions  of  the  judges  in  matters  concerning  the  construction 
and  interpretation  of  the  constitution.  But  their  decision,  when 
made,  was  expected  to  be  final.  It  was  not  intended  to  leave 
the  last  word  in  constitutional  interpretation  to  the  courts.  The 
main  reliance  of  the  framers  of  the  Massachusetts  constitution 
for  the  protection  of  the  rights  of  the  people  was  placed  in  the 

1  See  Cambridge  Modern  Hhlory,  vol.  vii,  p.  313. 

2  Brinton   Coxe,   Judicial   Power  and   Unconstitutional  Legislation.    See   also 
C.  G.  Haines,  The  American  Doctrine  of  Judicial  Supremacy,  ch.  iv. 

*  Art.  xik.  4  Ch.  iii,  art.  i.  6  Ch.  iii,  art.  ii. 


62          STATE  GOVERNMENT  IN  UNITED  STATES 

legislature.1  This  was  also  the  case  in  the  beginning  throughout 
the  United  States. 

The  speedy  transfer  of  this  reliance  from  the  legislatures  to 
the  courts  was,  however,  inevitable  from  the  very  nature  of  the 
American  political  system.  By  any  logical  interpretation  of  the 
doctrine  of  the  division  of  powers,  it  was  necessary  that  each  de- 
partment of  government  be  recognized  as  the  judge  of  the  nature 
and  extent  of  its  own  duties  and  powers.  If  the  legislature,  for 
example,  might  not  only  judge  of  the  extent  of  its  own  powers, 
but  bind  the  other  departments  to  accept  its  opinions  on  all 
questions  involving  a  conflict  of  authority  between  different 
departments,  the  supremacy  of  the  legislature  would  be  abso- 
lutely unchecked.  In  order  to  maintain  even  the  semblance  of 
a  proper  balance,  no  department  could  be  allowed  to  define  the 
constitutional  rights  of  any  other  department  without  giving 
that  other  department  an  opportunity  to  be  heard.  Where  de- 
partments, however,  are  theoretically  coordinate  and  equal,  that 
which  acts  last  has  a  clear  advantage  over  the  others.  Now,  in 
the  ordinary  course  of  government  through  law,  the  department 
which  acts  last  upon  questions  involving  the  interpretation  of 
the  constitution  is  the  judiciary.  The  legislature,  to  be  sure, 
may  appeal  from  a  decision  of  the  courts  by  setting  in  motion 
the  machinery  of  constitutional  amendment,  but  if  this  machinery 
is  hard  to  move,  or  if  public  opinion  is  opposed  to  its  frequent 
use,  the  opinions  of  the  legislature  on  constitutional  questions, 
though  theoretically  of  equal  validity,  will  actually  become  sub- 
ordinate to  those  of  the  courts.  Unless,  therefore,  the  early  state 
legislatures  kept  a  tight  hold  on  the  machinery  for  the  amendment 
and  revision  of  the  constitutions,  the  judiciary,  acting  last  on 
disputed  questions  of  constitutional  law,  would  be  likely  to  make 
their  views  most  effective.  That  the  judiciary  would  not  hesitate 
to  express  their  views,  when  at  variance  with  those  of  the  legis- 
lature, was  quickly  made  manifest.2 

The  courts  were  clearly  destined  to  become  the  special  guardians 
of  the  constitutions,  because  the  power  of  judicial  review  was  in- 
herent in  the  American  governmental  system.  Moreover  the 

1  See  declaration  of  rights,  art.  xxii. 

2  See  C.  G.  Haines,  The  American  Doctrine  of  Judicial  Supremacy,  Table  of  early 
cases,  pp.  74-77- 


THE  ORIGINAL  FORMS  OF  STATE  GOVERNMENT    63 

Fathers  quickly  perceived  that  the  principle  of  the  division  of 
powers  was  broad  enough  to  include  the  electorate  among  the 
organs  of  government  between  which  the  powers  of  government 
were  to  be  shared.  It  was  the  people  who  were  to  be  protected 
against  oppression  and  tyranny,  and  the  tyranny  of  a  majority 
of  the  electorate  was  felt  to  be  as  undesirable  as  any  other  kind 
of  tyranny.  Not  the  least  important  of  the  checks  and  balances 
therefore  were  those  which  were  designed  to  prevent  a  casual 
majority  of  the  voters  from  changing  the  established  forms  of 
government  or  principles  of  legislation  without  the  approval  of 
public  opinion.  The  voters  were  checked  by  the  necessity  of 
accomplishing  their  purposes  through  the  other  organs  of  gov- 
ernment, and  the  power  of  the  electorate  was  balanced  by  the 
powers  vested  in  constitutional  conventions,  legislatures,  execu- 
tives, and  judiciary.  These  powers,  as  for  example  in  many 
states  the  powers  of  the  constitutional  convention,  were  not 
necessarily  contained  in  the  written  constitution,  but  were  im- 
plied by  the  nature  of  the  principles,  that  is,  in  the  very  spirit, 
of  American  government.  Since  the  sovereignty  of  the  people 
was  to  be  maintained  through  the  reign  of  law,  it  inevitably  fol- 
lowed that  the  judiciary,  if  made  even  slightly  independent  of 
the  other  departments  of  government,  would  assume  the  task  of 
preserving  inviolate  the  fundamental  principles  of  American 
government,  as  understood  by  them.  In  practice  this  meant  that 
the  courts  of  law  would  intervene  with  a  judicial  veto  to  protect 
the  rights  of  minorities  against  encroachments  of  the  majority 
acting  through  the  organs  of  government  most  directly  controlled 
by  the  electorate.1  Thus  the  function  of  judicial  review  came 
to  be  associated  with  the  protection  of  the  rights  of  the  people.2 

1  G.  C.  Tiedeman,  The  Unwritten  Constitution  of  the  United  States,  ch.  xii. 

1 J.  B.  Thayer,  "The  Origin  and  Scope  of  the  American  Doctrine  of  Constitu- 
tional Law,"  in  his  Legal  Essays,  pp.  1-41.  Cf.  the  same  author's  Life  of  John  Mar- 
shall, chs.  iii-v.  There  has  been  much  controversy  concerning  the  exact  time  when 
the  doctrine  of  judicial  review  was  recognized  by  the  American  people.  See  A.  C. 
McLaughlin,  The  Courts,  the  Constitution,  and  Parties,  and  the  review  thereof  by 
C.  A.  Beard  in  the  American  Historical  Review,  January,  1913,  pp.  378  f. ;  see  also 
C.  A.  Beard,  The  Supreme  Court  and  the  Constitution,  and  J.  H.  Dougherty,  Power 
of  Federal  Judiciary  over  Legislation,  and  the  reviews  thereof  hy  W.  F.  Dodd  in  the 
same,  pp.  380  f.  See  also  Max  Farrand,  The  Framing  of  tlie  Constitution  of  the 
United  States.  But  cf.  H.  A.  Davis,  "Amendment  of  Legislation  by  the  Supreme 
Court"  in  the  Am.  Pol.  Sci.  Rev.,  vii,  pp.  541-587.  Cf.  also,  ibid.,  "The  Judicial 


64         STATE  GOVERNMENT  IN  UNITED  STATES 

This  power  of  review,  however,  was  not  final.  It  was  in  its 
turn  subject  to  the  sovereign  power  of  the  people.1  Writing  in 
1820  Jefferson  found  it  necessary  to  say:2  "You  seem  ...  to 
consider  the  judges  as  the  ultimate  arbiters  of  all  constitutional 
questions  —  a  very  dangerous  doctrine  indeed,  and  one  which 
would  place  us  under  the  despotism  of  an  oligarchy.  Our  judges 
are  as  honest  as  other  men,  and  not  more  so.  They  have,  with 
others,  the  same  passions  for  party,  for  power  and  for  the  privi- 
lege of  their  corps.  Their  maxim  is,  Boni  judicis  est  amplicare 
jurisdictionem:  and  their  power  is  the  more  dangerous  as  they 
are  in  office  for  life,  and  not  responsible,  as  the  other  function- 
aries, to  the  elective  control.  The  Constitution  has  created  no 
such  single  tribunal,  knowing  that,  to  whatever  hands  confided, 
with  the  corruptions  of  time  and  party,  its  members  would  be- 
come despots.  It  has  more  wisely  made  all  the  departments 
co-equal  and  co-sovereign  within  themselves."  There  can  be 
no  doubt  that  Jefferson  set  forth  the  true  doctrine  of  the  ease. 
The  judges  in  ten  of  the  original  states  (that  is,  in  all  except 
Rhode  Island,  Connecticut,  and  Pennsylvania)  were  arbiters  of 
all  constitutional  questions,  as  has  been  shown,  in  the  sense  that 
they  had  the  same  right  as  the  other  departments  of  government 
to  construe  the  constitution.  They  possessed  the  important 
advantage,  moreover,  of  acting  upon  constitutional  questions  as 
a  rule  after  the  other  departments  of  government  had  acted. 
But  the  ultimate  arbiters  were  the  people.  The  real  question 
at  stake  was  that  concerning  the  mode  in  which  the  opinion 
of  the  people  should  be  ascertained  and  made  effective.  As  we 
have  seen,  several  different  modes  were  tried,  but,  as  the  event 

Veto."  It  seems  clear  that  the  doctrine  grew  rapidly  in  favor  among  leading 
Federalist  politicians,  and  although  it  was  not  expressly  endorsed  in  the  federal 
Constitutional  Convention  of  1787,  it  probably  would  not  have  been  opposed  by  the 
majority  of  the  members.  The  doctrine  was  set  upon  its  feet,  as  a  national  prin- 
ciple of  government,  by  the  federal  Supreme  Court  under  John  Marshall,  and 
thereupon  seems  to  have  been  accepted  almost  unquestioned,  not  only  by  the  state 
courts  but  by  the  legislatures  and  people  generally.  Yet  as  late  as  1808  two 
judges  of  the  supreme  court  of  Ohio  were  impeached  for  declaring  an  act  of  the  legis- 
lature unconstitutional,  and  were  removed  from  office.  See  Cooley  on  Constitutional 
Limitations,  7th  ed.,  p.  229,  note.  See  also  C.  G.  Haines,  The  American  Doctrine 
of  Judicial  Supremacy. 

1  See  J.  Q.  Adams,  "Letter  of  Menander"  (1792),  in  Writings  of  J.  Q.  Adams 
(Ford's  ed.),  i,  p.  127. 

*  Jefferson's  Writings,  vii,  p.  177. 


THE  ORIGINAL  FORMS  OF  STATE  GOVERNMENT    65 

proved,  none  was  satisfactory,  and  in  default  of  a  better  solution 
of  the  problem,  the  task  of  interpreting  the  constitution  was 
finally  permitted  to  rest  with  the  judiciary  during  the  intervals 
between  constitutional  conventions.1 

Thus  the  doctrine  of  the  division  of  powers  was  perfected  by 
the  invention,  or  better  the  discovery,  of  the  doctrine  of  judicial 
review,  and  the  system  of  checks  and  balances  was  made  a  work- 
able substitute  for  that  of  legislative  supremacy.  The  fact  re- 
mains, however,  that  in  the  beginning  the  latter  system  rather 
than  the  former  chiefly  prevailed  in  practice. 

SPECIAL  PRIVILEGES  FOR  PROPERTY 

There  was  another  aspect  of  the  doctrine  of  the  division  of 
powers,  which  was  not  mentioned  in  any  of  the  original  declara- 
tions of  rights.  This  was  the  social  aspect  of  the  doctrine. 
"Most  of  the  political  writers  of  modern  times,  who  have  had 
any  idea  of  a  free  government,  have  contended  for  a  division  of 
the  legislative  power.  They  would  have,  in  the  legislature,  one 
body  of  men,  representing  the  commonalty ;  a  senate,  represent- 
ing the  wealthy  and  more  honorable  part  of  the  community; 
and  the  head  of  the  executive,  whether  king,  president,  or  gov- 
ernor, representing  the  individuality  or  sovereignty  of  the  state. 
These  bodies,  for  the  purpose  of  maintaining  an  exact  balance  of 
the  several  interests  in  the  state,  are  to  have  a  mutual  negative 
in  passing  all  laws.  The  balance  is  to  be  supported,  and  the 
happiness  of  the  people  secured,  by  a  mutual  opposition  of  rights, 
interests,  and  powers."  2 

The  great  advocate  of  a  system  of  social,  as  well  as  political, 
checks  and  balances  was  John  Adams.3  Nor  was  he  alone  in 
these  views.  In  the  original  state  constitutions,  the  balance  of 
the  rights  of  property  against  the  rights  of  mere  man  by  the 

1  For  a  discussion  of  the  original  position  of  the  judiciary  in  Vermont,  where 
the  same  principles  of  legislative  supremacy  prevailed  as  in  Rhode  Island,  Con- 
necticut, and  Pennsylvania,  see  Chipman's  Sketches  of  the  Principles  of  Government 
(i793).  PP-  11^-127. 

*  See  Chipman's  Sketches  of  the  Principles  of  Government,  sketch  iv,  sec.  Hi. 

*  See  the  Preface  to  his  Defence  of  the  Constitutions  of  Government  of  the  United 
States  of  America,  especially  at  p.  xiii.     See  also  C.  M.  Walsh,  The  Political  Science 
of  John  Adams. 

w 


66         STATE  GOVERNMENT  IN  UNITED  STATES 

division  of  the  legislature  into  two  branches  and  the  requirement 
of  a  higher  property  qualification  from  members  of  the  upper 
house  than  from  members  of  the  lower  was  the  general  rule. 
The  most  extreme  instance  was  in  South  Carolina,  where  by  the 
constitution  of  1778  senators  were  required  to  possess  two  thou- 
sand pounds  in  land,  representatives,  fifty  acres  of  land  or 
their  equivalent.  In  North  Carolina  the  constitution  of  1776 
granted  the  franchise  for  electors  of  members  of  the  lower  house 
to  all  tax-payers,1  and  restricted  the  right  to  vote  for  members 
of  the  senate  to  owners  of  not  less  than  fifty  acres.2  In  New 
York  the  electorate  for  the  upper  house  was  restricted  by  a  much 
higher  property  qualification  than  that  of  ordinary  electors,  the 
senatorial  and  gubernatorial  electors  being  less  than  one-fourth 
as  numerous  as  the  latter.  In  Massachusetts  the  arrangement  in 
the  rejected  constitution  of  1778  was  much  like  that  in  North 
Carolina.  In  the  constitution  of  1780  the  same  effect  was  sought 
through  a  different  system  of  apportionment.  The  franchise 
was  the  same  for  electors  of  senators  and  representatives,  but 
the  members  of  the  upper  house  were  apportioned  according  to 
taxable  property,  those  of  lower  according  to  population.  A 
similar  arrangement  was  adopted  in  New  Hampshire.  In  Vir- 
ginia, as  indeed  in  several  of  the  states,  qualifications  of  electors 
and  methods  of  apportionment  of  members  were  the  same  for 
both  houses,  the  chief  difference  being  the  smaller  size  of  the 
upper  house  and  in  some  cases  the  longer  term  of  its  members. 
Jefferson  criticized  this  arrangement  on  the  ground  that  the 
maintenance  of  two  houses,  both  representing  the  same  electo- 
rate, served  no  useful  purpose,  and  declared  that  if  the  electorate 
for  the  lower  house  could  not  be  made  more  popular  than  that 
for  the  upper,  one  of  the  houses  would  be  superfluous  and  should 
be  dispensed  with  altogether.3  In  Pennsylvania,  Georgia,  and 
Vermont  the  latter  view  prevailed,  and  the  legislatures  of  the 
original  state  governments  consisted  of  only  one  house.  Man 
alone  was  represented. 

Adams's  theory  of  a  social  as  well  as  a  political  division  of 
powers  and  of  a  corresponding  system  of  checks  and  balances 
was,  indeed,  far  from  obtaining  universal  acceptance.  The 
framers  of  the  Pennsylvania  constitution  of  1776,  of  whom 

1  Arts,  viii,  ix.  2  Art.  vii.  3  Notes  on  Virginia,  ch.  xii. 


THE  ORIGINAL  FORMS  OF  STATE   GOVERNMENT    67 

Franklin  was  the  chief,  certainly  did  not  accept  it.1  Jefferson 
also  must  be  classed  among  its  opponents.  It  is  true  that  in  his 
plan  of  a  constitution  for  Virginia,  drafted  in  1783,  he  proposed 
a  senate  consisting  of  one-sixth  as  many  members  as  the  lower 
house  and  serving  for  two  years  instead  of  one,  and  to  be  chosen 
by  colleges  of  electors  representing  the  voters  of  the  several 
senatorial  districts,  as  was  actually  the  practice  at  that  time  in 
Maryland.  Jefferson's  purpose,  however,  in  creating  a  senate 
was  not  to  give  separate  representation  to  different  economic 
interests  and  social  classes,  but  to  provide  for  greater  delibera- 
tion in  the  enactment  of  laws.  As  Paine  pointed  out:  "The 
objection  against  a  single  house  is,  that  it  is  always  in  a  condi- 
tion of  committing  itself  too  soon."  2  On  the  other  hand,  demo- 
crats like  Paine  saw  even  more  serious  objections  to  two  houses, 
and  on  the  whole  were  inclined  to  reject  the  principle  of  a  bi- 
cameral legislature.  Paine  himself  advocated  a  legislature  of  a 
single  chamber,  and  the  adoption  of  a  system  of  legislative  pro- 
cedure, designed  to  encourage  the  development  of  responsible 
legislative  committees,  as  a  substitute  for  a  second  house.3 
Other  early  democrats,  like  Chipman,  favored  the  retention  of 
the  bicameral  system,  but  expressly  repudiated  Adams's  doctrine 
of  the  separate  representation  of  class  interests.4  Adams's 
theory  of  class  representation,  a  theory  which  savors  of  Polyb- 
ius  and  of  Machiavelli 5  as  much  as  of  Montesquieu,  eventually 

1  Adams,  Defence  (London  ed.  of  1787),  letter  xxv,  pp.  105-120. 

1  The  Rights  of  Man,  pt.  ii,  p.  34.  3  Ibid.,  p.  35. 

*  See  his  Sketches  of  the  Principles  of  Government,  pp.  140-142. 

'Adams  quotes  with  great  approval  the  following  passage  from  Machiavelli's 
Discourse  upon  the  Proper  Ways  and  Means  of  Reforming  the  Government  of  Florence. 
"There  are  three  orders  of  men  in  every  state,  and  for  that  reason  there  should 
be  also  three  ranks  or  degrees  in  a  republic,  and  no  more;  nor  can  that  be  said 
to  be  a  true  and  durable  commonwealth,  where  certain  humors  and  inclinations 
are  not  gratified,  which  otherwise  must  naturally  end  in  its  ruin.  Those  who 
model  a  commonwealth  must  take  such  provisions  as  may  gratify  three  sorts  of 
men,  of  which  all  states  are  composed;  that  is,  the  high,  the  middle  sort,  and  the 
low." 

Adams's  comment  is  as  follows:  "Machiavel  by  these  observations  demon- 
strates that  he  was  fully  convinced  of  this  great  truth,  this  eternal  principle,  with- 
out the  knowledge  of  which  every  speculation  upon  government  must  be  imperfect, 
and  every  scheme  of  a  commonwealth  essentially  defective." — John  Adams, 
Defence  of  the  Constitutions  of  Government  of  the  United  States,  vol.  ii,  ch.  iv, 
"Machiavel's  Plan  of  a  Perfect  Commonwealth." 

In  accordance  with  this  principle,  Adams  in  Massachusetts,  as  also  Jay  in  New 


68         STATE  GOVERNMENT  IN  UNITED  STATES 

gained  for  him  the  distrust  of  the  Jeffersonian  republicans  and  the 
nickname  of  ' '  monocrat."  Though  it  was  probably  held  by  most 
of  those  who  later  formed  the  Federalist  party,  it  was  never 
accepted  by  the  American  people  to  the  same  extent  as  the  more 
democratic  doctrine  of  the  division  of  powers  held  by  Jefferson 
and  Madison.  Though  the  practice  of  a  separate  representation 
of  different  social  and  economic  interests  survived  into  the  nine- 
teenth century  in  several  states,  it  was  not  further  extended  in 
any  state  except  South  Carolina,1  and  it  was  not  systematically 
defended  by  any  prominent  statesman  except  Calhoun.2  In 
short,  beyond  the  recognition  of  the  principle  that  political  au- 
thority should  be  delegated  to  a  responsible  portion  of  the  people 
to  be  exercised  on  behalf  of  the  whole,  the  attempt  to  introduce 
class  distinctions  into  the  American  political  system  was  out  of 
harmony  with  the  spirit  of  American  life. 

GENERAL  CHARACTER  OF  ORIGINAL  STATE  GOVERNMENTS 

The  true  character  of  the  original  institutions  of  state  govern- 
ment is  revealed  by  a  comparison  with  the  institutions  of  colonial 
government  which  had  gone  before.  At  the  close  of  the  colonial 
period,  each  colony  had  its  legislative  body,  elected  by  the  voters, 
but,  except  in  Rhode  Island  and  Connecticut,  possessing  prac- 
tically no  independent  powers.  The  representatives  of  the  people 
could  choose  a  speaker,  adopt  rules  of  procedure,  and  adjourn, 
but  there  their  autonomous  powers  ended.  In  all  the  colonies 
except  Pennsylvania  and  Georgia  there  was  also  an  upper  house 
or  council,  whose  consent  was  necessary  before  laws  could  be 
enacted  or  any  positive  action  accomplished.  The  members  of 

York,  devised  the  governorship  to  represent  the  higher  sort  of  men,  the  senate  to 
represent  the  middle  sort,  and  the  house  of  representatives  to  represent  the  lower. 
Hamilton  would  have  been  content  to  have  followed  the  precepts  of  Montesquieu 
literally,  and  established  a  government  of  kings,  lords,  and  commons,  but  Adams 
certainly  would  not  have  gone  so  far  as  that.  Needless  to  say  that  the  opinion 
of  the  people  of  the  Revolution  was  against  both  Adams  and  Hamilton  and  with 
Jefferson,  who  repudiated  altogether  the  doctrine  of  Montesquieu  with  reference 
to  a  social  division  of  powers.  Cf.  C.  M.  Walsh,  The  Political  Science  of  John 
Adams,  chs.  6,  7,  and  21. 

1  Constitution  of  1790,  amendments  adopted  in  1808. 

2  See  John  C.  Calhoun,  Disquisition  on  Government  and  Discourse  on  the  Constitu- 
tion and  Government  of  the  United  States,  pp.  396-406. 


THE  ORIGINAL  FORMS  OF  STATE   GOVERNMENT    69 

this  branch  of  the  legislature  were  appointed  by  the  governor, 
except  in  Massachusetts,  where  they  were  elected  by  the  lower 
house  subject  to  the  approval  of  the  governor,  and  in  Rhode 
Island  and  Connecticut,  where  they  were  chosen  by  the  elec- 
torate. In  all  the  colonies  except  the  last  two,  the  governor  was 
appointed  from  England,  and  possessed  many  important  powers. 
He  was  commander-in-chief  of  the  armed  forces  of  the  colony, 
appointed  the  judges  and  all  other  civil  and  military  officers, 
appointed  and  could  suspend  the  council,  convened  and  could 
dissolve  the  legislature,  could  exercise  an  unqualified  veto  on  all 
legislative  acts,  and  had  an  unrestricted  power  to  pardon  offenders. 

The  possession  of  these  unlimited  powers  gave  to  the  royal  or 
proprietary  governor  complete  independence  of  local  control 
except  in  the  single  matter  of  finance.1  The  use  of  the  judicial 
veto  to  maintain  imperial  sovereignty  was  unnecessary  except  in 
Rhode  Island  and  Connecticut.  In  those  two  colonies,  appeals 
to  the  judicial  committee  of  the  privy  council  could  be  taken  for 
the  purpose  of  maintaining  the  supremacy  of  the  laws  of  Eng- 
land, in  case  of  a  conflict  with  colonial  laws,  but  not  for  the  pur- 
pose of  enforcing  the  arbitrary  will  of  the  British  sovereign.  Else- 
where the  power  of  the  lower  house  to  withhold  its  consent  to 
taxation  was  the  sole  political  power  for  the  defense  of  the  rights 
of  the  colonists. 

Thus  the  legislatures  came  to  be  the  people's  bulwarks  against 
royal  and  proprietary  tyranny,  and  after  the  Revolution  naturally 
retained  an  undue  share  of  the  people's  confidence.  The  result 
was,  that  except  in  Massachusetts,  New  Hampshire,  and  New  York 
the  doctrine  of  the  division  of  powers  was  not  followed  to  the 
extent  of  making  the  three  departments  of  government  actually 
independent  and  coordinate.  On  the  contrary,  the  executive 
was  either  deprived  altogether  of  its  powers  of  appointment,  re- 
vision, pardon,  and  legislative  control,  or  greatly  limited  in  their 
exercise,  and  the  control  of  the  judiciary  was  also  transferred 
from  the  executive  to  the  legislature.  The  reconstruction  of  the 
political  institutions  of  the  original  states  was  in  the  main  the 
achievement  of  a  tidal  wave  of  insurgency,  which  sought  expres- 
sion through  the  state  legislatures.  The  effect  was  to  establish 
in  practice  the  supremacy  of  the  legislature,  except  in  Pennsyl- 

1  See  E.  B.  Greene,  The  Provincial  Governor. 


70         STATE  GOVERNMENT  IN  UNITED  STATES 

vania  and  Vermont,  where  an  attempt  was  made  to  work  out  the 
theory  of  popular  sovereignty  through  the  invention  of  a  special 
organ  of  the  popular  will,  the  council  of  censors.  But  the  legal 
supremacy  of  the  legislatures  was  always  subordinate  to  the 
political  sovereignty  of  the  people,  and,  as  we  have  seen,  it  was 
necessarily  expressed  through  the  enactment  of  law  depending 
for  its  ultimate  force  upon  the  power  of  public  opinion. 

The  original  state  governments  were  representative  democ- 
racies. They  were  founded  upon  written  constitutions,  setting 
forth  both  the  rights  of  the  people  and  the  duties  of  those  en- 
trusted by  them  with  political  authority.  These  constitutions 
were  not  intended,  however,  to  be  narrowly  construed  like  ordi- 
nary legal  documents.  They  were  political  documents  to  be  con- 
strued broadly,  and  to  reflect  the  lives  and  purposes  of  all  the 
people  at  all  times.  The  main  features  of  the  governments  estab- 
lished in  the  original  states  were  three  in  number :  (i)  the  reser- 
vation of  civil  rights  to  the  people ;  (2)  the  delegation  of  political 
authority  to  the  electorate ;  and  (3)  the  division  of  powers  be- 
tween the  legislative,  the  executive,  and  the  judiciary.  The 
rights  reserved  to  the  people  fell  into  three  main  classes  :  (i)  the 
right  of  revolution;  (2)  the  rights  essential  to  the  free  expres- 
sion of  public  opinion ;  and  (3)  the  right  to  law.  The  delegation 
of  political  authority  to  the  electorate  implied  the  existence  of  a 
fourth  right,  the  right  to  vote,  vested  in  those  duly  qualified  for 
the  exercise  thereof.  The  division  of  powers  between  coordinate 
departments  of  government  was  designed  to  make  possible  the 
establishment  of  governments  which  should  be  strong  enough 
effectively  to  foster  the  common  welfare  without  being  so  inde- 
pendent of  popular  control  as  to  menace  the  liberties  of  the 
people.  The  acceptance  of  the  principle  of  the  division  of 
powers  compelled  the  recognition  of  the  power  of  judicial  review 
of  all  legislative  and  executive  acts  involving  the  interpretation 
of  a  constitution.  The  judiciary  thereby  became  the  special 
guardians  of  the  fundamental  law,  subject  like  other  depart- 
ments of  government  to  the  sanction  of  public  opinion. 

It  is  commonly  supposed  that  all  the  leading  principles  of  the 
fundamental  law  of  the  land  were  expressed  in  written  constitu- 
tions. An  examination  of  the  original  constitutions  shows  that 
this  supposition  is  not  correct.  The  most  important  of  the  fun- 


THE  ORIGINAL  FORMS  OF  STATE  GOVERNMENT    71 

damental  principles  of  American  constitutional  law  relate  to  the 
organization  and  powers  of  the  constitutional  convention.  The 
procedure  of  the  original  states,  however,  with  regard  to  the 
preparation  and  adoption  of  the  first  state  constitutions  was  far 
from  uniform.  The  best  procedure  was  not  developed  until  the 
adoption  of  the  Massachusetts  constitution  of  1780,  the  last  of 
the  original  state  constitutions.  Only  five  of  the  original  states, 
including  Vermont,  made  any  provision  for  constitutional  revi- 
sion by  special  conventions.  Three  others  made  provision  for 
amendment  by  special  legislative  action.  Six  states  made  no 
express  formal  distinction  between  the  process  of  ordinary  statute- 
making  and  that  of  constitution-making.  In  short,  there  was 
nothing  in  the  constitutions  or  laws  of  most  of  the  states  to  pre- 
vent a  revolutionary  legislature  or  convention  from  usurping 
unto  itself  all  the  powers  of  government,  like  the  French  con- 
vention of  1792-95.  Yet  we  are  safe  in  asserting  that  such  a 
usurpation  could  not  have  been  effected.  The  unwritten  law  of 
the  constitution  forbade  the  establishment  on  American  soil  of 
any  such  tyrannical  body  as  the  French  convention. 

But  what,  it  is  proper  to  ask,  is  the  sanction  by  which  obedience 
to  the  unwritten  constitution  is  ultimately  enforced?  It  is  not 
enough  to  answer  that  usurpation  would  not  have  been  tolerated 
by  an  indignant  people,  and  that,  if  the  force  of  public  opinion 
proved  insufficient,  it  would  have  been  opposed  by  force  of  arms. 
The  true  answer  is,  that  obedience  to  the  unwritten  as  well  as 
to  the  written  constitution  is  enforced  by  the  power  of  the  law 
itself,  for  the  breach  of  the  fundamental  principles  of  American 
government,  the  principles  of  popular  sovereignty  and  the  reign 
of  law,  will  inevitably  bring  the  offender  into  conflict  with  the 
law  of  the  land.1  The  declaration  that  "no  subject  shall  be 

1  See  Kamper  vs.  Hawkins,  i  Virginia  Cases,  20  (1793).  This  was  a  case  in- 
volving the  validity  of  a  statute  designed  to  confer  upon  certain  inferior  courts  of 
justice  certain  judicial  powers  in  equity  granted  by  the  constitution  of  1776  exclu- 
sively to  the  court  of  chancery.  Contrary  to  the  views  of  those  who,  like  Jefferson, 
believed  that  the  constitution  of  1776  had  no  more  force  than  an  ordinary  statute 
and  hence  could  be  freely  altered  at  any  time  by  the  legislature,  the  supreme  court 
held  that  ordinary  statutes  in  conflict  with  the  constitution  were  of  no  effect.  See 
also  G.  C.  Tiedeman,  The  Unwritten  Constitution  of  the  United  States,  ch.  xii,  and 
A..V.  Dicey,  Introduction  to  the  Study  of  the  Law  of  the  Constitution,  ch.  xv.  There 
are  of  course  many  political  customs  in  the  American  states  of  much  consequence 
in  practical  politics  which  cannot  be  ranked  among  the  principles  of  the  unwritten 


72          STATE   GOVERNMENT  IN  UNITED  STATES 

arrested  ...  or  deprived  of  his  life,  liberty,  or  estate,  but  by 
the  judgment  of  his  peers  or  the  law  of  the  land"  was  not  in- 
tended to  be  an  empty  phrase.1  For  protection  against  all  but 
the  most  violent  attacks  upon  their  liberties,  the  people  would 
look  to  the  law  courts.  If  the  judges  failed  them,  there  remained 
the  juries,  composed  of  men  from  their  own  midst,  to  interpose  a 
popular  veto  to  schemes  of  oppression.  Any  man  who  had  been 
indicted  for  a  crime  might  submit  his  cause  to  the  judgment  of 
the  petty  jury  with  confidence  that  his  fate  would  be  decided  by 
those  who  were  his  peers  and  who  would  be  responsible  only  to 
their  own  consciences. 

De  Tocqueville,  who  well  understood  the  spirit  of  the  original 
judicial  system,  justly  observed  that  the  jury  was  preeminently 
a  political  institution  and  should  be  regarded  as  one  form  of  the 
sovereignty  of  the  people.2  "The  institution  of  the  jury  .  .  .," 
he  wrote,  "places  the  real  direction  of  society  in  the  hands  of  the 
governed,  .  .  .  and  not  in  that  of  the  government.  Force  is 
never  more  than  a  transient  element  of  success,  and  after  force 
comes  the  notion  of  right.  A  government  which  should  be  able 
to  reach  its  enemies  only  upon  a  field  of  battle  would  soon  be 
destroyed.  The  true  sanction  of  political  laws  is  to  be  found  in 
penal  legislation ;  and  if  that  sanction  be  wanting,  the  law  will 
sooner  or  later  lose  its  cogency.  He  who  punishes  the  criminal 
is  therefore  the  real  master  of  society.  Now  the  institution  of 
the  jury  raises  the  people  itself  ...  to  the  bench  of  judges. 
The  institution  of  the  jury  consequently  invests  the  people  .  .  . 
with  the  direction  of  society."  3  Thus  was  republican  govern- 
ment founded  by  the  Fathers  on  the  firm  basis  of  a  combination 
of  the  sovereignty  of  the  people  and  the  reign  of  law.4 

constitution.  Thus  the  practice  of  rotation  in  office  or  of  restricting  the  choice 
of  representatives  to  inhabitants  of  the  district  to  be  represented  is  more  or  less 
strongly  established  by  custom  in  different  localities,  but  neither  is  essential  to  the 
maintenance  of  the  sovereignty  of  the  people  or  of  the  reign  of  law.  Only  those 
practices  which  are  essential  to  the  maintenance  of  these  two  fundamental  princi- 
ples are  a  part  of  the  unwritten  constitution.  Other  legal  principles  may  not  be- 
come a  part  of  the  supreme  law  of  the  land  except  by  incorporation  in  a  written 
constitution,  and,  until  so  incorporated,  have  no  greater  force  than  that  infused 
into  them  by  public  opinion. 

1  See  Massachusetts  Declaration  of  Rights,  art.  xii. 

2  A.  de  Tocqueville,  Democracy  in  America,  i,  ch.  xvi. 
8De  Tocqueville,  ibid.  (Bowen's  ed.),  i,  p.  361. 

4  St.  George  Tucker,  Commentaries  on  Blackslone,  i,  pp.  87-92. 


CHAPTER   IV 
THE  REFORMATION  OF  STATE  GOVERNMENT 

THE  foundations  of  state  government  were  laid  upon  prin- 
ciples that  have  endured.  The  twin  principles  of  popular 
sovereignty  and  constitutional  _government  furnished  a  base 
broad  and  solid  enough  to  support  a  stable  and  progressive 
political  system.  The  superstructure,  however,  has  undergone 
important  modifications. 

In  the  beginning,  as  has  been  shown,  there  were  three  distinct 
types  of  state  government.  These  types  are  best  represented  by 
the  governments  originally  established  in  the  three  leading  states, 
Virginia,  Pennsylvania,  and  Massachusetts.  The  government  of 
Virginia,  to  which  the  governments  of  the  greater  number  of 
states  more  or  less  closely  conformed,  was  characterized  by  the 
restriction  of  the  electoral  franchise  to  those  deemed  "fit,"  and 
by  the  supremacy  of  the  legislature  in  the  actual  conduct  of 
affairs  of  state.  The  government  of  Pennsylvania  differed  from 
that  of  Virginia  in  various  respects,  two  of  which  were  particu- 
larly important.  The  electorate  was  much  broader  than  that  of 
Virginia,  and  the  authority  of  the  legislature  was  limited  by  the 
creation  of  a  special  organ  of  the  popular  will,  the  council  of 
censors.  The  government  of  Vermont  resembled  that  of  Penn- 
sylvania in  these  respects.  The  government  of  Georgia  was 
characterized  by  the  supremacy  of  the  legislature,  as  in  Virginia, 
but  the  legislature  was  a  unicameral  body  and  there  was  a  com- 
paratively broad  electorate,  as  in  Pennsylvania.  The  govern- 
ment of  Massachusetts,  like  that  of  Pennsylvania,  differed  from 
that  of  Virginia  in  two  important  respects.  The  executive  and 
judiciary  were  much  more  independent  of  the  legislature  than  in 
Virginia,  and  the  authority  of  the  legislature  was  limited  by  the 
grant  of  special  powers  to  the  executive  and  judiciary.  The  gov- 
ernment of  New  Hampshire  closely  resembled  that  of  Massa- 

73 


74          STATE   GOVERNMENT  IN  UNITED   STATES 

chusetts ;  that  of  New  York  was  based  on  similar  principles,  but 
resembled  it  less  closely.  In  Rhode  Island  and  Connecticut  the 
governor  was  chosen  by  the  people,  as  in  Massachusetts,  but  the 
legislature  was  practically  supreme,  as  in  Virginia.  Such  was  the 
diversity  in  the  forms  of  government  in  the  original  states. 

THE  BEGINNING  OF  REFORM 

It  was  impossible  that  such  wide  variations  in  the  political 
institutions  of  the  states  should  long  endure.  In  practice  it  would 
happen  that  some  of  them  would  work  better  than  others,  and 
those  that  seemed  to  work  best  would  naturally  become  models 
for  general  imitation.  Moreover,  theoretically,  if  the  political 
theory  of  the  Revolution  be  taken  as  a  guide,  some  of  these 
forms  of  government  were  certainly  much  less  perfect  than  others. 
Jefferson,  the  most  popular  interpreter  of  Revolutionary  political 
theory,  was  not  altogether  satisfied  with  any  of  them.  In  1783, 
when  he  thought  there  was  to  be  a  constitutional  convention  in 
Virginia  for  the  purpose  of  revising  the  original  form  of  govern- 
ment, he  drafted  a  model  constitution  in  which  his  ideas  are  clearly 
set  forth.  Although  Jefferson's  plan  was  never  adopted  in  any 
state,  it  is  now  of  greater  interest  than  any  of  the  original  plans 
of  government  which  were  actually  put  into  operation,  for  it  is 
the  most  perfect  expression  of  the  Revolutionary  theories  of 
state  government.  It  is  evident  that  he  was  greatly  dissatisfied 
with  the  existing  constitution  of  his  own  state.  The  changes 
which  he  proposed  are  numerous.  They  all,  however,  fall  under 
one  or  the  other  of  two  heads.  First,  there  are  those  which  were 
intended  to  broaden  the  electorate  and  strengthen  its  control 
over  the  other  organs  of  government  and  over  the  constitution 
itself.  Secondly,  there  are  those  which  were  intended  to  bring 
about  a  more  effective  division  of  powers.  The  constitutional 
history  of  the  states  since  Jefferson's  time  is  a  history  of  the  tri- 
umph of  Jeffersonian  principles  and  of  the  consequences  of  that 
triumph. 

The  constitutions  of  Georgia  and  Pennsylvania  were  the  first 
to  be  reformed.  Doubtless  the  adoption  of  an  effective  system 
of  checks  and  balances  in  the  Federal  Constitution  of  1787 
accelerated  the  process  in  all  the  states  where  the  original  division 


THE  REFORMATION  OF  STATE  GOVERNMENT        75 

of  powers  was  defective.  But  in  those  two  states  the  change 
was  brought  abou.t  earlier  than  elsewhere  by  the  manifestly  un- 
satisfactory working  of  their  original  institutions.  In  Georgia 
the  only  check  upon  the  supremacy  of  the  single-chambered  legis- 
lature under  the  constitution  of  1777  was  that  afforded  by  the 
direct  action  of  the  people  through  the  juries  and  through  the 
system  of  constitutional  amendment.  The  juries  were  the 
judges  both  of  the  law  and  of  the  facts,  and  no  alterations  could 
be  made  in  the  constitution  except  by  a  constitutional  convention, 
which  the  legislature  was  to  call  together  upon  receipt  of  a  peti- 
tion setting  forth  the  desired  amendments  and  signed  by  a 
majority  of  the  voters  in  a  majority  of  the  counties.  The  latter 
provision  proved  to  be  unworkable  and  the  former  inadequate. 
In  1789  the  original  constitution  was  abandoned,  and  a  new 
one  adopted  without  regard  to  the  prescribed  method  of  con- 
stitutional amendment.  A  bicameral  legislature  was  created, 
the  executive  council  was  abolished  and  its  duties  for  the  most 
part  transferred  to  the  newly  created  senate,  and  the  governor, 
though  still  dependent  on  the  legislature  for  his  election,  was 
armed  with  the  veto  power.  The  influence  of  the  Federal  Con- 
stitution is  apparent.  Thus  the  original  system  of  legislative 
supremacy  gave  way  to  a  form  of  government  somewhat  more 
consistent  with  Jeffersonian  principles. 

THE  REFORM  OF  THE  CENSORIAL  SYSTEM 

The  most  original  feature  of  the  Pennsylvania  constitution  of 
1776  was  the  council  of  censors.  The  purpose  of  this  institution 
was  to  preserve  the  constitution  against  infraction.  This  was 
to  be  accomplished,  as  has  already  been  pointed  out,  partly  by 
protecting  the  several  departments  from  encroachments  upon 
one  another's  powers,  but  especially  by  protecting  the  people  from 
encroachments  upon  their  reserved  rights  by  any  of  the  depart- 
ments. To  accomplish  these  purposes,  the  council  of  censors 
was  authorized  to  suggest  to  the  legislature  the  repeal  of  uncon- 
stitutional legislation,  or  the  enactment  of  legislation  required 
for  the  proper  performance  of  constitutional  duties,  and  to 
censure  public  officers  deemed  guilty  of  misbehavior.  It  could 
order  impeachments,  and,  in  case  of  need,  call  a  convention  to 


76         STATE  GOVERNMENT  IN  UNITED  STATES 

consider  the  amendment  of  the  constitution.  The  council  of 
censors  was  free  to  exercise  any  or  all  of  those  various  powers  at 
discretion,  and  there  was  no  means  of  holding  it  responsible  for  a 
discreet  exercise  thereof.  The  operations  of  the  first  council, 
elected  in  1783,  demonstrated  the  unwisdom  of  such  a  combina- 
tion of  legislative,  executive,  and  judicial  functions  in  a  single 
irresponsible  body.  Madison  has  faithfully  recorded  the  results 
of  that  experience.1  The  members  of  the  council  were  for  the 
most  part  persons  who  had  been  active  in  the  affairs  of  the  gov- 
ernment the  conduct  of  which  they  were  authorized  to  review. 
As  might  be  expected,  they  brought  to  their  new  duties  a  thor- 
oughly partisan  spirit.  "Throughout  the  continuance  of  the 
council,  it  was  split  into  two  fixed  and  violent  parties."  This 
was  the  first  cause  of  the  failure  of  the  censorial  system.  Sec- 
ondly, the  council  itself  was  quite  as  liable  to  err  in  its  interpre- 
tation of  the  constitution  as  the  avowedly  partisan  bodies  upon 
which  it  professed  to  sit  in  judgment.  Finally,  says  Madison, 
"I  have  never  understood  that  the  decisions  of  the  council  on 
constitutional  questions,  whether  rightly  or  erroneously  formed, 
have  had  any  effect "  in  varying  the  practices  which  it  undertook 
to  censure. 

In  1790,  when  the  election  of  the  second  council  of  censors  was 
in  order,  the  legislature,  with  the  approval  of  public  opinion,  but 
without  any  express  constitutional  authority,  called  a  consti- 
tutional convention  instead.  This  convention  adopted  a  new 
constitution,  providing  for  the  abolition  of  the  council  of  censors 
and  of  the  original  executive  council.  It  substituted  therefor 
a  state  senate  to  serve  as  a  check  on  the  house  of  representatives, 
a  single  chief  executive  elected  directly  by  the  people,  armed  with 
the  veto  power  and  unhampered  by  special  executive  councillors, 
and  an  independent  judiciary.  Indeed  most  of  the  principal 
features  of  the  Massachusetts  constitution  were  adopted,  with  the 
exception  that  the  senate,  instead  of  a  special  executive  council, 
was  associated  with  the  governor  in  the  making  of  executive 
appointments.  At  the  same  time  the  electorate  remained  more 
democratic  than  in  Massachusetts.  Probably  Jefferson  would 
have  pronounced  the  Pennsylvania  constitution  of  1790  the  most 
satisfactory  then  in  force  in  the  states. 

1  The  Federalist  (Ford's  ed.),  no.  50. 


THE  REFORMATION  OF  STATE  GOVERNMENT      77 

The  censorial  system  endured  for  a  much  longer  period  in 
Vermont.  In  that  state  censors  were  elected  from  the  state  at 
large,  and  not  by  districts  as  in  Pennsylvania,  and  members  of 
the  government  were  ineligible.  The  system  seems  to  have 
worked  much  better  in  Vermont  than  in  Pennsylvania,  partly 
no  doubt  because  party  lines  were  less  closely  drawn  in  the  former 
state  than  in  the  latter,  and  partly  because  the  system  of  election 
made  the  council  a  more  homogeneous  and  responsible  body. 
The  Vermont  council  of  censors  met  altogether  thirteen  times. 
Thrice  it  adjourned  without  proposing  any  changes  in  the  con- 
stitution of  the  state.  Ten  times  it  proposed  amendments  and 
called  a  convention  to  consider  their  adoption.  Twice  the  pro- 
posed amendments  were  adopted  in  part,  four  times  they  were 
adopted  in  their  entirety,  and  four  times  they  were  rejected. 
In  1836  the  transformation  of  the  executive  council  into  a  state 
senate  terminated  the  unicameral  legislative  system,  and  in  1870 
the  adoption  of  the  censors'  proposal  that  no  more  councils  of 
censors  be  elected  put  an  end  to  the  censorial  system.  With  the 
abolition  of  the  Vermont  council  of  censors  disappeared  the  last 
vestiges  of  the  peculiar  Pennsylvania  forms  of  state  government.1 

The  failure  of  the  censorial  system  did  not  mean  that  there  was 
no  need  of  any  special  arrangement  to  preserve  the  constitution 
inviolate.  In  Pennsylvania,  according  to  Madison's  report,  the 
constitution  had  been  violated  many  times  before  the  election  of 
the  first  council  of  censors.2  Laws  had  been  passed  without  the 
due  public  notice  required  by  the  constitution.  Legislative 
powers  had  been  exercised  by  the  legislature  which  were  not 
granted  to  it  by  the  constitution.  Executive  powers  also  had 
been  usurped.  Salaries  of  judges  had  been  reduced  in  order  to 
render  them  more  subservient,  and  lawsuits  which  should  have 
been  decided  by  the  judiciary  had  frequently  been  decided  by  the 
legislature.  It  is  true  that  many  of  these  violations  had  occurred 
during  the  period  of  active  military  operations,  but  it  is  equally 
true  that  the  record  of  the  Pennsylvania  government  was  be- 
smirched with  much  unconstitutional  conduct  that  was  inex- 
cusable. 

1  L.  H.  Header,  "  The  Council  of   Censors,"  in  Papers  from  th*  Historical 

Seminary  of  Brown  University  (1899). 
1  The  Federalist  (Ford's  ed.),  no.  48. 


78         STATE  GOVERNMENT  IN  UNITED  STATES 

The  censorial  system,  and  with  it  the  Pennsylvania  form  of 
government  as  a  whole,  failed  because  it  did  not  satisfy  the 
requirements  of  American  democracy.  The  Pennsylvania  form 
was  intended  to  be  democratic.  Actually  the  procedure  for  the 
revision  of  the  constitution  under  the  censorial  system  was  less 
democratic  than  that  originally  adopted  in  Massachusetts,  since 
the  council  of  censors  stood  between  the  people  and  the  consti- 
tutional convention.  The  council  of  censors  was  intended  to 
safeguard  the  constitutional  division  of  powers.  Actually  it 
violated  the  principle  of  the  division  of  powers  by  concentrating 
in  its  own  hands  arbitrary  and  yet  ineffective  powers  of  all  kinds. 
Regarded  as  a  legislative  body,  it  was  impotent  except  to  call  a 
constitutional  convention.  As  an  instrument  of  economy  and 
efficiency  in  the  executive  department,  it  was  useless.  In  the 
exercise  of  its  judicial  powers,  it  was  partisan  and  pernicious. 
In  short,  down  to  1790  the  censorial  system  in  Pennsylvania  had 
been  in  practice  a  system  of  unchecked  legislative  supremacy. 

The  revision  of  the  original  Georgia  and  Pennsylvania  consti- 
tutions marked  the  beginning  of  a  general  process  of  constitutional 
development,  characterized  by  the  gradual  democratization  of 
the  forms  of  government  and  the  redivision  of  powers  along  the 
lines  demanded  by  the  Jeffersonian  political  theory.  The  new 
states,  as  they  came  into  the  Union,  quickly  showed  the  influence 
of  Jeffersonian  ideas.  The  older  states  in  some  cases  were 
slower  to  abandon  their  original  aristocratic  prejudices  and  to 
discard  the  system  of  legislative  supremacy.  The  extraordinary 
success  of  the  "more  perfect  union"  certainly  had  much  to  do 
with  the  general  adoption  of  more  effective  arrangements  for  the 
division  of  powers,  but,  as  will  be  shown  more  clearly  in  the  next 
chapter,  the  logic  of  events  everywhere  favored  the  redivision  of 
powers.  The  explanation  of  the  progress  of  democracy  in  the 
government  of  the  states  must  be  sought  in  the  economic  and 
social  conditions  of  American  life.  The  dominant  fact  in  the  life 
of  the  American  people  during  the  century  following  the  Revolu- 
tion was  the  subjugation  of  the  wilderness.  The  tone  of  Ameri- 
can society  was  derived  from  the  tone  of  society  on  the  frontier. 
But  the  winning  of  the  west  not  only  opened  up  vast  stores  of 
material  wealth  for  the  American  people,  it  also  enriched  their 
moral  fiber.  It  stimulated  above  all  the  virtues  of  self-reliance 


THE  REFORMATION  OF  STATE  GOVERNMENT     79 

and  personal  initiative.  Every  man  who  was  able  and  willing 
to  toil  could  be  the  master  of  his  destiny.  The  resulting  popular 
self-confidence  was  the  dominant  fact  in  the  development  of  the 
political  institutions  of  the  states.  The  political  fruit,  so  to  speak, 
of  the  frontier  was  manhood  suffrage  and  the  general  democratiza- 
tion of  the  forms  of  state  government. 

MANHOOD   SUFFRAGE 

The  right  to  vote,  or  the  right  of  suffrage,  is  conferred  by  the 
state,  being  usually  prescribed  in  the  state  constitution,  subject 
to  the  provision  of  the  Federal  Constitution  that  the  right  of  citi- 
zens to  vote  shall  not  be  denied  or  abridged  on  account  of  race, 
color,  or  previous  condition  of  servitude.  This  clause  of  the 
Federal  Constitution  seems  to  imply  that  the  suffrage  is  one  of  the 
normal  rights  of  citizenship,  but  the  states  have  not  generally 
recognized  it  as  such.  In  the  beginning,  as  has  been  shown,  the 
original  states  conferred  the  suffrage  on  grounds  of  political  expe- 
diency, jealously  withholding  it  from  those  deemed  incapable  of 
exercising  the  franchise  to  the  common  advantage.  This  attitude 
was  quaintly  expressed  in  the  constitution  of  Vermont  (1777), 
which  stipulated  that  every  freeman  might  vote  "who  has  a 
sufficient  interest  in  the  community."  The  evidence  of  sufficient 
interest  chiefly  required  in  the  original  states  was  the  possession 
of  a  certain  amount  of  property.  Jefferson,  writing  shortly 
after  the  Revolution,  declared  that  these  requirements  were  too 
severe,  pointing  out  that  in  Virginia  they  disfranchised  the  ma- 
jority of  the  able-bodied  men  in  the  state.  Thus  dissatisfaction 
with  the  qualifications  for  the  suffrage  existed  at  the  very  begin- 
ning of  the  constitutional  history  of  the  states,  and  dissatisfaction 
of  one  sort  or  another  has  persisted  until  the  present. 

There  have  been  two  conflicting  tendencies  in  the  development 
of  the  qualifications  for  the  suffrage.  On  the  one  hand,  the 
belief  in  the  natural  nobility  of  man,  or  in  equal  rights,  as  the 
phrase  ran,  leads  easily  to  the  conviction  that  the  right  to  vote 
should  be  included  among  those  to  which  men  are  by  nature 
entitled.  If  all  men  are  "equal,"  particularly  if  they  have  an  equal 
right  to  the  pursuit  of  happiness,  and  if  the  electoral  franchise 
is  an  important  means  of  engaging  in  such  a  pursuit,  then  all  men 


80         STATE  GOVERNMENT  IN  UNITED  STATES 

should  have  an  equal  right  to  vote.  The  theory  of  natural  rights 
was  supported  by  more  practical  considerations,  such  as  the  in- 
justice of  withholding  the  vote  from  landless  and  even  moneyless 
artisans  and  craftsmen  who  nevertheless  help  support  the  govern- 
ment by  the  payment  of  taxes,  directly  or  indirectly,  and  defend 
it  by  bearing  arms.  These  considerations  were  reenforced  by 
the  conditions  of  life  in  most  parts  of  the  Union,  especially  upon 
the  Western  frontier.  Social  democracy  on  the  frontier  inevi- 
tably gave  rise  to  political  democracy,  and  the  same  result  was 
facilitated  in  the  older  parts  of  the  Union  by  the  competition  of 
parties  for  popular  support.  Before  the  close  of  the  eighteenth 
century  Vermont,  Kentucky,  and  Tennessee  came  into  the  Union 
with  the  principle  of  manhood  suffrage  practically  established, 
if  not  explicitly  recognized,  in  their  constitutions.  The  states  of 
the  old  Northwest  and  Southwest,  entering  the  Union  early  in  the 
nineteenth  century,  often  included  in  their  electorates  not  only 
all  adult  white  male  citizens,  native  and  naturalized,  but  also 
aliens,  even  those  who  had  not  declared  their  intention  to  become 
naturalized.  The  original  states  were  slower  to  adopt  the  prin- 
ciple of  manhood  suffrage,  and  less  inclined  to  grant  the  franchise 
to  foreign-born  males  who  had  not  been  admitted  to  citizenship. 
Massachusetts,  however,  extended  the  suffrage  to  all  poll-tax- 
paying  citizens  in  1820;  New  York  broadened  the  franchise  in 
1821  and  established  manhood  suffrage  for  white  male  citizens  in 
1826 ;  Virginia  did  likewise  in  1830  and  1850,  respectively. 
Rhode  Island  was  the  only  state  in  which  resistance  to  the  exten- 
sion of  the  suffrage  led  to  violence.  There,  after  the  suppression 
of  Dorr's  rebellion,  the  new  constitution  of  1842  put  an  end  to 
property  qualifications  in  the  election  of  state  officers.  With  the 
triumph  of  the  advocates  of  equal  suffrage  for  adult  male  citizens 
of  the  white  race  the  principle  of  manhood  suffrage,  so-called,  was 
regarded  as  established  in  the  American  states. 

The  negro  was  not  brought  within  the  scope  of  the  principle  of 
manhood  suffrage  without  a  more  serious  struggle.  Originally 
duly  qualified  negroes  were  permitted  to  vote  in  five  of  the 
thirteen  states,  Massachusetts,  New  Hampshire,  New  York, 
New  Jersey,  and  North  Carolina.  Subsequently  New  York, 
when  abolishing  the  property  qualifications  for  the  franchise, 
provided  that  the  new  qualifications  should  apply  to  the  white 


THE  REFORMATION  OF  STATE   GOVERNMENT      81 

race  only,  leaving  the  property  qualifications  in  effect  for  negroes, 
and  New  Jersey  and  North  Carolina  deprived  the  negroes  of  their 
votes  altogether.1  The  only  new  states  which  granted  the 
franchise  in  any  form  to  negroes  were  Vermont,  Kentucky,  Ten- 
nessee, and  Maine,  and  two  of  these  presently  took  the  vote 
away  again.2  None  of  the  old  states  except  Rhode  Island 
extended  the  vote  to  the  negro  until  after  the  close  of  the  Civil 
War.  Indeed  there  was  no  demand  for  negro  suffrage,  and  man- 
hood suffrage  became  universally  restricted  to  whites,  outside  of 
New  England.  In  1867,  after  the  issue  of  negro  suffrage  had 
been  raised  in  connection  with  the  reconstruction  of  the  southern 
states,  the  people  of  Minnesota  refused  by  a  close  vote  to  strike 
the  word  "white"  from  the  article  of  the  constitution  relating  to 
the  suffrage,  and  in  the  following  year  the  people  of  New  York 
refused  to  remove  the  property  qualifications  from  colored  voters. 
The  word  "  white"  still  remains  in  the  constitutions  of  four  states, 
Kansas,  Maryland,  Ohio,  and  Oregon,  a  relic  of  the  ante-bellum 
discrimination  against  the  negro  with  respect  to  the  suffrage,  and 
even  as  lately  as  191 2  the  people  of  Ohio  refused  to  strike  the  word 
out.  In  1870,  however,  equal  suffrage  for  negroes  was  established 
throughout  the  United  States  by  the  adoption  of  the  fifteenth 
amendment  to  the  Federal  Constitution. 

REACTION  AGAINST  MANHOOD  SUFFRAGE 

Despite  the  extension  of  the  franchise  to  negroes,  the  principle 
of  manhood  suffrage  has  never  completely  triumphed  in  the 
United  States.  It  did  not  triumph  in  1870,  as  is  shown  not  only 
by  the  debate  in  Congress  at  the  time  of  the  submission  of  the 
fifteenth  amendment  to  the  states,  but  also  by  the  wording  of  the 
amendment  itself.  There  has  always  been  another  principle 
tending  to  produce  the  exclusion  of  certain  classes  from  the 
franchise.  This  is  the  principle  of  fitness.  It  is  argued  that  the 
electoral  franchise  is  not  one  of  the  natural  rights  asserted  by  the 
Fathers,  but  that  on  the  contrary,  as  has  been  shown,  it  was 
originally  conceived  as  a  privilege  to  be  conferred  only  on  those 
capable  of  putting  it  to  good  use.  The  vote  was  intended  to  be 

1  North  Carolina  deprived  the  free  negro  of  the  vote  in  1833,  New  Jersey  in  1844. 
1  Kentucky  in  1799,  Tennessee  in  1834. 
c 


82         STATE  GOVERNMENT  IN  UNITED  STATES 

used,  not  primarily  or  mainly  to  foster  the  interests  of  the  partic- 
ular class  entrusted  therewith,  but  to  protect  the  rights  and  pro- 
mote the  welfare  of  the  whole  people.  No  person  therefore  may 
claim  a  "right"  to  vote,  unless  he  can  show  that  his  claim  is 
founded  upon  considerations  pertaining  to  the  general  welfare 
rather  than  to  his  own  private  advantage.  The  test  of  fitness  for 
the  suffrage,  it  is  urged,  is  the  ability  of  the  individual  to  voice 
public  opinion,  or  some  shade  of  opinion  needful  to  bring  the 
opinion  of  the  electorate  into  harmony  with  public  opinion,  rather 
than  a  merely  personal  or  private  opinion.  In  the  practice  of  the 
American  states,  to  be  sure,  the  adult  male  came  to  be  generally 
deemed  the  fittest  person  to  represent  the  interests  of  other 
classes  of  the  people  and  to  voice  the  opinion  of  the  people  as  a 
whole,  but  this  rule  of  policy,  it  is  contended  by  the  opponents  of 
the  doctrine  of  the  natural  right  to  vote,  should  not  be  twisted 
into  a  principle  of  universal  and  indiscriminate  application, 
regardless  of  the  different  degrees  of  fitness  possessed  by  the 
different  classes  of  adult  males. 

The  chief  cause  of  difficulty  in  the  application  of  the  doctrine 
of  manhood  suffrage  has  been  the  negro,  and  the  purpose  of  the 
white  man,  particularly  in  the  South,  to  exclude  the  colored  man 
from  a  voice  in  government  has  been  expressed  in  the  doctrine  of 
the  superior  fitness  of  the  white  race.  Negro  suffrage  was  im- 
posed upon  eleven  states  of  the  South  by  the  reconstruction  act 
of  March  3, 1867,  and  was  maintained  there  with  ever-diminishing 
effectiveness  by  force  of  arms.  By  the  time  of  the  final  with- 
drawal of  the  federal  troops  from  the  southern  states  in  1877, 
negro  suffrage,  where  it  threatened  the  political  supremacy  of 
the  white  race,  had  been  generally  suppressed  by  moral  suasion, 
fraud,  intimidation,  or  violence.  These  methods,  however,  were 
unsatisfactory.  Beginning  in  Mississippi  in  1890,  the  white 
people  of  the  South  have  adopted  the  policy  of  disfranchising  the 
negroes  by  means  of  constitutional  restrictions  upon  the  suffrage, 
nominally  applying  to  all  citizens  alike,  but  actually  discriminat- 
ing against  the  negro. 

In  Mississippi  the  method  was  as  follows.  The  requirement  of 
residence  was  raised  to  two  years  in  the  state  and  one  in  the  election 
district ;  disqualification  for  crime  was  extended  to  the  following 
offenses,  —  bribery,  burglary,  theft,  arson,  obtaining  money  or 


THE  REFORMATION  OF  STATE   GOVERNMENT     83 

goods  under  false  pretenses,  perjury,  forgery,  embezzlement,  and 
bigamy ;  the  payment  of  all  taxes  was  made  a  prerequisite  to  the 
vote,  and  a  uniform  poll-tax  of  two  dollars  was  established,  with 
the  proviso  that  the  board  of  supervisors  of  any  county  might 
increase  it  to  three  dollars  and  that  no  criminal  proceedings  to 
enforce  payment  should  be  allowed.1  In  addition  the  prospective 
voter  is  required  to  be  able  to  read  any  section  of  the  constitution 
or  give  a  reasonable  explanation  of  the  same  when  read  to  him, 
and  in  general  to  possess  a  satisfactory  understanding  of  the  duties 
of  citizenship.  Since  the  judges  of  the  reasonableness  of  the 
required  explanations  and  of  the  satisfactoriness  of  the  under- 
standing are  the  white  election  officers,  even  the  negro  who  fulfills 
all  the  other  requirements  for  the  suffrage  cannot  hope  to  qualify 
against  the  wishes  of  the  whites. 

The  chief  difficulty  in  the  elimination  of  the  negro  vote  has 
been  to  disfranchise  the  negro  without  at  the  same  time  either 
disfranchising  whites  or  violating  the  provision  of  the  fifteenth 
amendment  of  the  Federal  Constitution  forbidding  racial  dis- 
crimination. In  Mississippi  this  is  evidently  intended  to  be 
accomplished  by  avoiding  discrimination  in  the  letter  of  the  law 
and  seeking  it  in  the  enforcement.  Other  southern  states  have 
sought  to  escape  the  dangers  of  that  policy  by  the  invention  of 
the  so-called  "grandfather"  clause.  Thus,  in  Alabama  by  the 
constitution  of  1901  it  was  provided  that  after  January  i,  1903, 

1  This  policy  is  frankly  explained  in  the  following  passage  from  a  recent  opinion 
of  the  Attorney-General  of  Mississippi :  —  "The  ostensible  purpose  in  framing  this 
section  of  the  constitution  (i.e.,  sect.  241,  relating  to  the  suffrage)  was  to  disfran- 
chise as  many  negroes  as  possible,  and  the  injunctions  delivered  by  the  section,  when 
well  unravelled,  make  it  apparent  that  the  negro  as  a  race  would  come  more  clearly 
within  its  requirements  than  any  other.  In  the  first  place  the  negro  is  known  in  our 
midst  as  a  nomadic  tribe,  and  as  a  rule  on  account  of  their  shiftlessness  none  of  them 
will  hardly  reside  in  an  election  precinct  more  than  a  year,  but  drift  from  planta- 
tion to  plantation  and  landlord  to  landlord ;  and  in  that  way  very  few,  if  any,  on 
account  of  residence  as  required  by  this  section  are  qualified  voters.  Very  few,  if 
any,  in  Mississippi  have  any  taxes  except  a  poll,  and  with  no  thought  of  government 
and  in  many  instances  with  no  disposition  as  well  as  inability  to  pay  this  tax,  they 
are  as  a  rule  delinquents  and  are  for  that  reason  disqualified.  The  crimes  of  bur- 
glary, bribery,  theft,  arson,  obtaining  money  or  goods  under  false  pretences,  perjury, 
forgery,  embezzlement,  or  bigamy,  I  might  say  are  indigenous  to  the  negro's  nature 
.  .  .  and  in  that  way  thus  so  many  more  are  deprived  of  exercising  the  right  of 
franchise."  (Opinion  of  Attorney-General  S.  S.  Hudson  on  what  constitutes  quali- 
fied elector,  published  by  the  State  Board  of  Election  Commissioners,  Jackson, 
Miss.,  n.  d.) 


84         STATE  GOVERNMENT  IN  UNITED  STATES 

only  those  persons  may  register  as  voters  who  can  either  (i)  read 
and  write  any  article  of  the  Constitution  of  the  United  States  in 
English,  and  who  are  physically  unable  to  work  or  who  have 
worked  or  been  regularly  engaged  in  some  lawful  employment 
for  the  greater  part  of  the  twelve  months  next  preceding;  or 
else  (2)  prove  title  to  forty  acres  of  land  upon  which  they  reside, 
or  to  real  estate  or  personal  property  assessed  at  a  valuation  of 
not  less  than  $300,  upon  which  all  taxes  have  been  paid.  But 
up  to  December  20, 1902,  persons  who  served  in  the  United  States 
army  in  the  Mexican,  Indian,  or  Spanish  wars,  or  in  either  the 
Union  or  Confederate  army  in  the  Civil  War,  the  lawful  descend- 
ants of  such  persons,  and  "all  persons  of  good  character  who 
understand  the  duties  and  obligations  of  citizenship  under  a 
republican  form  of  government,"  were  entitled  to  register  as 
voters  and  to  remain  on  the  list  of  registered  voters  to  the  end  of 
their  lives,  whether  able  or  not  to  qualify  under  the  educational 
or  property  tests.  Another  example  of  the  so-called  "  grand- 
father" clause  is  contained  in  the  constitution  of  North  Carolina, 
which  provides,  by  an  amendment  adopted  in  1907,  that  no 
person  who  on  January  i,  I867,1  or  prior  thereto,  was  entitled  to 
vote  under  the  laws  of  any  state  of  the  Union  wherein  he  then 
resided,  and  no  lineal  descendant  of  such  person,  shall  be  denied 
the  right  to  register  and  vote  by  reason  of  failure  to  possess  the 
required  educational  qualification,  provided  that  he  register 
prior  to  December  i,  1908.  In  Georgia,  by  an  amendment 
adopted  in  1908,  the  special  exemption  from  literacy  and  property 
tests  to  lawful  descendants  of  war  veterans  was  unlimited  in 
point  of  time,  thus  perpetuating  the  discrimination  against  the 
negro  race.  In  Oklahoma,  by  an  amendment  of  1910,  the 
"  grandfather"  clause  was  adopted  in  the  most  extreme  form. 
No  person  may  vote  unless  able  to  read  and  write  any  section 
of  the  state  constitution,  "but  no  person  who  was  on  January  i, 
1866,  or  any  time  prior  thereto,  entitled  to  vote  under  any  form 
of  government,  or  who  at  that  time  resided  in  some  foreign  nation, 
and  no  lineal  descendant  of  such  person,  shall  be  denied  the  right 
to  vote  because  of  his  inability  to  so  read  and  write."  This 
form  of  the  clause,  if  not  in  conflict  with  the  Federal  Constitution, 

1  The  congressional  reconstruction  acts,  conferring  the  franchise  upon  the  negroes, 
were  not  adopted  until  March  3,  1867. 


THE  REFORMATION  OF  STATE   GOVERNMENT     85 

would  have  extended  its  protection  for  all  time  to  illiterates  of 
every  description  except  negroes,  but  on  the  other  hand  would 
not  have  discriminated  against  literate  negroes.1 

Another  cause  of  difficulty  in  the  application  of  the  doctrine 
of  manhood  suffrage  has  been  the  immigrant.  When  in  the  late 
forties  the  Irish  and  Germans  first  began  coming  in  large  numbers, 
the  native  Americans  were  prone  to  regard  them  as  of  inferior 
fitness  for  the  work  of  operating  American  political  institutions. 
The  short-lived  American  party  was  founded  upon  this  assump- 
tion, and  had  for  its  object  the  discouragement  of  immigration 
by  means  of  legal  restrictions  against  aliens.  This  party  suc- 
ceeded in  Massachusetts  in  securing  the  adoption  in  1857  of  an 
educational  qualification  for  the  suffrage  intended  to  exclude  the 
illiterate  immigrants  from  the  electorate.  Similar  restrictions 
upon  the  "  right  to  vote"  have  since  been  adopted  for  the  same 
purpose  in  three  other  New  England  states  and  also  in  four  states 
of  the  Far  West.2  In  a  larger  number  of  western  states  the 
reaction  against  manhood  suffrage  produced  by  the  immigration 
from  Europe  did  no  more  than  cause  the  withholding  of  the 
franchise  from  aliens  until  they  should  declare  their  intention  of 
becoming  naturalized  or  should  actually  have  carried  out  that 
intention.3  On  the  Pacific  coast  the  antipathy  against  immi- 
grants of  the  yellow  race  caused  their  complete  exclusion  from 
citizenship.  The  native-born  members  of  the  yellow  race,  how- 
ever, may  obtain  the  vote  on  the  same  terms  as  other  Ameri- 
cans. 

WOMAN  SUFFRAGE 

The  modern  demand  for  equal  suffrage  for  women  is  founded 
both  on  the  principle  of  natural  rights  and  on  that  of  fitness. 
The  natural  right  of  women  to  the  ballot  is  deduced  from  the 
fundamental  principles  of  American  government.  The  doctrine 
of  the  natural  nobility  of  man  is  construed  to  be  broad  enough 
to  include  women.  Equal  rights  for  all,  it  is  argued,  means  for 
all  women  as  well  as  for  all  men.  The  American  states  have  gone 

1  See  post,  ch.  vi. 

*  Maine,  New  Hampshire,  Connecticut,  Arizona,  California,  Washington,  and 
Wyoming. 

*  At  present  only  seven  states  permit  unnaturalized  aliens  to  vote,  viz.  Arkansas, 
Indiana,  Kansas,  Missouri,  Nebraska,  South  Dakota,  and  Texas. 


86         STATE  GOVERNMENT  IN  UNITED  STATES 

far  in  giving  to  women  the  same  civil  rights  as  men,  and  the 
demand  for  political  equality  is  but  the  logical  conclusion  of  the 
movement  towards  full  civil  equality.  As  in  the  case  of  the 
demand  for  manhood  suffrage  a  century  ago,  the  doctrine  of 
equal  rights  is  supported  by  some  more  practical  considerations, 
such  as  the  injustice  of  withholding  the  franchise  from  women, 
who  nevertheless  help  support  the  government  by  paying  taxes, 
some  directly,  others  indirectly,  and  defend  it  by  bearing  their 
share  of  the  burdens  of  war.  These  considerations  are  reenforced 
by  the  development  of  women's  work  outside  the  home  and  the 
growth  of  a  class  of  wage-earning  women  whose  interests  are 
felt  to  need  the  protection  afforded  in  the  case  of  wage-earning 
men  by  the  possession  of  the  ballot.  The  principle  of  fitness 
as  the  test  of  eligibility  to  the  suffrage  may  be  appealed  to  with 
equal  justification  by  the  advocates  of  votes  for  women.  The 
general  education  of  women  on  the  whole  is  as  good  as  that  of 
men,  and  the  experience  of  life  enjoyed  by  women  under  modern 
American  conditions  of  civil,  industrial,  and  social  equality  with 
men  adequately  qualifies  women  for  the  exercise  of  the  suffrage. 
Moreover,  women's  special  functions  in  the  home  give  her  special 
qualifications  for  dealing  with  matters  relating  particularly  to  the 
home,  and  make  it  imperative  that  the  opinion  of  womankind 
receive  that  due  weight  in  politics  which  can  be  established  only 
by  the  ballot. 

The  extension  of  the  franchise  to  women  on  the  same  terms  as 
to  men  was  begun  by  the  grant  of  equal  suffrage  in  the  territory 
of  Wyoming  in  1869.  The  theory  of  natural  rights,  then  upper- 
most in  the  minds  of  the  people  on  account  of  the  discussion  of 
negro  suffrage,  was  a  powerful  factor  in  promoting  this  frontier 
experiment  with  political  equality  for  women.  In  the  states 
the  extension  of  the  franchise  to  women  had  already  been  begun 
by  the  grant  of  school  suffrage.  In  the  first  instance  —  Kentucky 
in  1838  —  the  grant  was  made  only  to  widows  with  children  in 
the  schools,  but  in  general  the  right  to  vote  in  school  elections, 
when  granted  at  all,  was  granted  to  all  women  on  the  same  terms 
as  to  men.1  School  suffrage,  however,  was  undoubtedly  granted 
mainly  upon  the  theory  that,  whatever  the  natural  right  of  women 

1  Beginning  in  Kansas  in  1861,  twenty-three  states  have  conferred  separate 
school  suffrage  upon  women.  Six  of  these  have  since  granted  full  suffrage  to  women. 


THE  REFORMATION  OF  STATE   GOVERNMENT     87 

to  full  political  equality  with  men,  they  had  a  special  interest  in 
the  conduct  of  public  schools  and  a  special  fitness  for  the  deter- 
mination of  questions  relating  to  the  education  of  children  .  Several 
states  have  also  conferred  upon  tax-paying  women  the  right  to 
vote  in  local  elections  upon  questions  concerning  taxation  and 
indebtedness.1  One  state,  Kansas,  conferred  full  municipal 
suffrage  upon  women  in  1887,  but  no  state  ventured  to  admit 
women  to  the  electorate  on  the  same  terms  as  men  until  the 
admission  to  statehood  in  1890  of  the  territory  of  Wyoming. 
Since  then  the  principle  of  equal  suffrage  for  women  has  been 
adopted  in  ten  other  states  2  and  in  the  territory  of  Alaska,  and, 
in  one  state,  women  suffrage  has  been  adopted  for  elections  to  all 
offices  within  the  control  of  the  legislature,  including  most  local 
offices,  a  few  state  offices,  and  the  office  of  presidential  elector.3 

At  the  present  time  the  states  are  evenly  divided  between  those 
in  which  manhood  suffrage,  so-called,  prevails  and  those  in  which 
the  vote  is  expressly  withheld  from  those  deemed  unfit.  In 
both  classes  of  states  all  persons  below  the  age  of  twenty-one 
years  are  excluded  from  the  electorate,  and  also  aliens  and 
women,  subject  to  the  exceptions  already  enumerated.  In 
addition  idiots  and  lunatics  are  generally  expressly  disqualified, 
also  paupers  or  other  persons  constituting  a  public  charge,  as 
well  as  felons,  especially  persons  guilty  of  bribery,  and  in  a  few 
states,  duelists.  In  all  states  a  definite  period  of  residence, 
generally  a  year  in  the  state  and  six  months  in  the  locality,  is 
required,  a  provision  which  disfranchises  permanently  all  persons 
without  settled  abodes,  and  temporarily,  in  the  absence  of  any 
means  of  voting  by  mail,  all  persons  who  change  their  legal 
residence  immediately  prior  to  an  election  or  who  are  unable  to 
be  present  in  the  locality  of  their  legal  residence  on  the  day  of 
election.  Finally,  most  states  provide  that  all  qualified  voters 
shall  be  registered,  or  at  least  that  all  qualified  voters  residing  in 
towns  and  cities  exceeding  a  certain  minimum  size,  shall  be 
registered.  Registration  may  be  accomplished  once  for  all  time, 
but  may  be,  and  in  large  cities  usually  is,  required  periodically, 

1  Six  in  all.    Two  of  them  have  since  granted  full  suffrage  to  women. 
'Colorado  (1893),  Utah  (1896),  Idaho  (1896),  Washington  (1910),  California 
(1911),  Arizona  (1912),  Kansas  (1912),  Oregon  (1912),  Montana  (1914),  and  Nevada 


1  Illinois  (1913). 


88         STATE  GOVERNMENT  IN  UNITED  STATES 

and  generally  must  be  performed  by  the  voter  in  person. 
Thus  a  duly  qualified  voter  may  be  temporarily  disfranchised 
by  failure  to  register  in  compliance  with  law. 

REFORM  OF  THE  BICAMERAL  SYSTEM 

One  of  the  early  results  of  the  progress  of  democracy  in  the 
states  was  the  abolition  of  the  provisions  for  the  special  repre- 
sentation of  property  in  the  state  legislatures.  In  New  York 
and  North  Carolina  the  establishment  of  manhood  suffrage 
marked  the  end  of  the  distinction  that  had  existed  between  the 
senatorial  electorate  and  that  of  the  lower  branch  of  the  state 
legislature.  All  white  voters  were  thereafter  permitted  to 
participate  in  the  election  of  both  senators  and  representatives 
on  equal  terms.  In  Massachusetts  and  South  Carolina  the 
systems  of  legislative  apportionment  designed  to  give  special 
representation  to  property  in  the  state  senates  were  abandoned 
in  1840  and  1868,  respectively. 

The  abandonment  of  the  purpose  to  make  one  branch  of  the 
state  legislature  the  special  guardian  of  the  interests  of  property 
by  means  of  distinctions  between  the  senatorial  electorate  and 
that  of  the  popular  house  or  between  the  systems  of  apportion- 
ment did  not  lead,  however,  to  the  abandonment  of  the  bi- 
cameral system.  The  people  still  retained  their  faith  in  the 
utility  of  a  second  chamber  as  a  means  of  checking  hasty  and 
ill-considered  legislation.  Moreover  the  abolition  of  the  original 
executive  councils  in  most  states,  which  took  place  at  about  the 
same  time,  and  the  transfer  of  their  powers  of  advising  and 
consenting  to  executive  appointments  to  the  state  senates,  placed 
new  duties  upon  the  latter  which  could  not  readily  be  provided 
for  in  any  other  way  without  doing  violence  to  the  prevailing 
theories  of  government.  Finally,  the  special  functions  of  the 
senate  in  the  trial  of  impeachments  seemed  to  require  the  reten- 
tion of  the  bicameral  system.  If  the  senates  had  exercised  legis- 
lative powers  only,  the  question  of  their  abolition  might  have 
been  debatable;  but  since  they  also  possessed  important 
executive  and  judicial  powers  the  question  was  hardly  raised 
and  never  seriously  considered.  The  adoption  of  the  bicameral 
system  in  the  Federal  Constitution  was  followed  by  the  abandon- 


THE  REFORMATION  OF  STATE   GOVERNMENT      89 

merit  of  the  unicameral  system  in  Georgia  in  1789  and  in  Penn- 
sylvania in  1790.  That  action  was  understood  to  have  settled 
the  matter  in  favor  of  the  division  of  the  legislatures  into  two 
houses. 

The  early  nineteenth-century  democracy  attempted  to  preserve 
the  special  character  of  the  upper  house  of  the  state  legislatures 
by  the  use  of  devices  less  repugnant  to  the  spirit  of  the  people 
than  that  of  special  and  exclusive  electorates.  The  senate  was 
generally  distinguished  from  the  more  popular  house  by  a  higher 
age  qualification,  a  longer  term  of  office,  a  system  of  partial 
renewals,  after  the  fashion  of  the  federal  senate,  and  a  less  nu- 
merous membership.  Thus  senators  were  expected  to  be  older 
and  more  experienced  men  when  first  elected,  and  the  senates 
themselves  were  expected  to  contain  at  any  given  time  a  smaller 
proportion  of  new  members  than  the  more  popular  houses.  The 
less  numerous  membership  usually  meant  the  election  of  senators 
in  larger  districts  than  members  of  the  lower  branch,  a  circum- 
stance which  was  expected  to  attract  abler  or  wealthier  candi- 
dates. Since  the  newer  states  adopted  the  practice  of  biennial 
elections  instead  of  the  annual  elections  which  universally  pre- 
vailed in  the  beginning,  the  result  was  generally  to  establish 
quadrennial  terms  for  senators  as  against  biennial  terms  for 
members  of  the  lower  branch.  In  New  York  and  New  Jersey, 
however,  the  practice  of  annual  elections  was  retained  for  mem- 
bers of  the  popular  house,  and  in  Massachusetts  it  was  retained 
for  the  members  of  both  houses. 

DIRECT  POPULAR  ELECTION  OF  EXECUTIVES  AND  JUDGES 

Another  consequence  of  the  progress  of  democracy  was  the 
strengthening  of  popular  control  over  executive  and  judicial 
officers.  In  the  beginning  the  only  state  officers,  exclusive  of 
officers  of  local  government,  to  be  elected  directly  by  the  people 
in  all  the  states  were  their  representatives  in  the  lower  branch  of 
the  state  legislatures.  The  general  acceptance  of  the  policy 
of  direct  election  of  the  state  governor  began,  however,  imme- 
diately after  the  close  of  the  Revolutionary  period.  Pennsyl- 
vania in  1790  and  Delaware  in  1792  provided  for  the  direct  elec- 
tion of  the  chief  executive  by  the  people  of  the  whole  state. 


90         STATE  GOVERNMENT  IN  UNITED  STATES 

Kentucky  1  and  Tennessee,  entering  the  Union  before  the  end  of 
the  century,  did  likewise,  and  since  then  no  new  state  has  been 
admitted  to  the  Union  in  which  provision  has  not  been  made  for 
the  direct  election  of  the  chief  executive  by  the  same  electorate 
which  is  authorized  to  choose  representatives  in  the  legislature. 
Some  of  the  older  states,  however,  were  slow  in  adopting  the  direct 
election  of  governor  by  the  people.2  Virginia  did  not  make  the 
change  until  1850,  and  South  Carolina,  the  last  to  abandon  the 
old  system  of  legislative  election,  did  not  yield  until  1866.  The 
change  from  legislative  to  popular  election  of  the  governor  in 
the  original  states  was  generally  accompanied  by  the  abolition 
of  the  executive  council  and  the  transfer  of  the  powers  of  the 
council,  at  least  in  relation  to  appointments,  to  the  senate.3 
Except  in  the  original  states,  separate  executive  councils  had  not 
been  created.  Doubtless  the  example  of  the  federal  government 
was  decisive  in  this  respect. 

The  same  arguments  that  produced  the  general  acceptance  of 
direct  election  of  governors  tended  also  to  produce  the  acceptance 
of  the  principle  that  all  executive  officers  should  be  elected  directly 
by  the  people.  This  principle  was  applied  not  only  to  local 
officers  exercising  a  portion  of  the  state  administrative  authority, 
such  as  sheriffs,  justices  of  the  peace,  and  the  various  county 
officers,  but  also  to  all  officers  serving  the  state  at  large,  such  as, 
in  the  beginning,  state  secretaries,  treasurers,  and  attorneys- 
general.  The  application  of  the  principle  to  judicial  officers  met 
with  more  opposition.  There  were  those  who  felt  that  the  inde- 
pendence of  the  judiciary,  concerning  the  importance  of  main- 
taming  which  there  was  no  disagreement,  would  be  jeopardized 
by  their  subjection  to  the  authority  of  the  electorate.  To  this 
the  reply  was  made  that  republican  government  could  not  be 
maintained  unless  the  judiciary  were  to  be  held  accountable  to 
some  authority,  and  that  under  the  original  system  they  were  in 

1  Kentucky  in  its  first  constitution  of  1792  provided  for  the  election  of  governor 
by  the  electoral  colleges  created  after  the  Maryland  model  for  the  election  of  sena- 
tors.   In  1799,  however,  the  state  went  over  to  the  direct  election  of  the  governor 
by  the  people. 

2  Georgia  (1824),  North  Carolina  (1835),  Maryland  (1837),  New  Jersey  (1844). 

3  For  history  of  Council  of  Appointment  in  New  York,  see  C.  Z.  Lincoln,  Consti- 
tutional History  of  New  York,  i,  pp.  596-607.     See  also  Gitterman,  "  The  Council  of 
Appointment  in  New  York,"  in  the  Pol.  Sci.  Q.,  vii,  pp.  80  ff. 


THE  REFORMATION  OF  STATE  GOVERNMENT     91 

fact  dependent  in  most  states  upon  the  legislature.  This  was 
indeed  clearly  the  case  in  those  states  in  which  the  judiciary  were 
elected  by  the  legislature  for  short  terms,  or  subject  to  impeach- 
ment and  removal  by  a  majority  vote  in  each  house  of  the  legis- 
lature. It  was  less  clearly  so  in  such  states  as  Massachusetts, 
where  they  were  appointed  during  good  behavior,  subject  to 
impeachment  and  removal  by  a  two- thirds  vote  in  the  upper  house, 
or  to  removal  by  the  executive  upon  address  of  both  branches  of 
the  legislature.  In  the  beginning,  however,  the  Massachusetts 
practice  was  the  exception  rather  than  the  rule,  and  in  the  ma- 
jority of  the  states,  therefore,  it  was  a  fair  argument  that  the 
election  of  judges  by  the  people  would  increase  rather  than 
diminish  their  independence,  especially  if  they  were  chosen  for 
comparatively  long  terms  and  assured  a  fixed  and  liberal  com- 
pensation.1 

The  general  adoption  of  the  direct  election  of  governors  was 
therefore  eventually  followed  by  the  general  acceptance  of  the 
principle  that  all  state  officers,  executive  and  judicial  alike,  should 
be  elected  directly  by  the  people.  Beginning  in  Mississippi  in 
1832,  the  extension  of  the  system  of  popular  election  to  all 
executive  and  judicial  offices  was  rapid  throughout  the  West, 
and  by  the  middle  of  the  century  had  become  the  universal 
practice  outside  of  the  original  states.  The  popular  election  of 
minor  executive  officers  was  also  generally  introduced  in  the 
original  states,  and  even  the  popular  election  of  judges  was  intro- 
duced in  the  most  inportant  of  the  latter,  notably  in  New  York  in 
1846  and  in  Pennsylvania  and  Virginia  in  1850.  In  New  England 
these  democratic  tendencies  encountered  more  stubborn  opposi- 
tion, and  in  1853  the  refusal  of  Massachusetts  to  adopt  the 
popular  election  of  judges,  though  the  state  later  accepted  the 
popular  election  of  minor  executive  officers,  checked  the  demo- 
cratic tide  in  that  part  of  the  Union.  New  Jersey,  which  adopted 
the  popular  election  of  governor  in  1844,  declined  to  introduce  the 
direct  election  of  other  state  executive  or  judicial  officers ;  but 
South  Carolina  was  the  only  state  to  retain  intact  its  original 
system  of  legislative  election  of  the  executive  and  judiciary  until 
after  the  Civil  War. 

1  See  T.  M.  Cooley,  Michigan,  in  the  American  Commonwealth  series,  pp.  303, 
304. 


92         STATE  GOVERNMENT  IN  UNITED  STATES 

The  adoption  of  the  direct  popular  election  of  executive  and 
judicial  officers  was  generally  accompanied  by  changes  in  the 
terms  and  tenure  of  executive  and  judicial  office.  The  terms  of 
executive  officers  were  lengthened,  and  their  tenure  was  made 
more  secure  by  requiring  more  than  bare  majorities  in  each  branch 
of  the  legislature  for  removal  by  process  of  impeachment.  Re- 
strictions originally  imposed  in  many  of  the  states  upon  eligibility 
for  reelection  to  executive  office  were  removed  or  diminished,  and 
in  general,  when  the  people  took  the  business  of  electing  the 
chief  executive  directly  into  their  own  hands,  his  position  was 
strengthened.  The  direct  election  of  other  executive  officers, 
however,  had  the  effect  of  relieving  them  from  responsibility  to 
the  governor.  Thus  at  the  same  time  that  the  political  authority 
of  the  governor  was  increased,  his  administrative  authority  was 
diminished.  State  politics  tended  to  become  more  responsive 
to  executive  leadership ;  for  the  governor  came  to  be  regarded 
as  peculiarly  the  representative  of  the  whole  people  of  the  state. 
State  administration  tended  to  become  less  amenable  to  control 
by  the  governor ;  for  actual  administrative  power  was  distributed 
among  a  group  of  officers,  each  of  whom  was  constitutionally 
as  much  the  representative  of  the  people  as  the  governor  himself. 
The  terms  of  the  judicial  offices  were  usually,  though  not  always, 
lengthened  when  they  were  made  elective  by  the  people,  and  the 
tenure  of  judicial  office  was  greatly  strengthened  by  the  increase 
of  the  legislative  majorities  required  for  removal  by  impeach- 
ment. Moreover  the  popular  prestige  of  the  judges  was  greatly 
enhanced  when  they  became  the  creatures  of  popular  rather  than 
of  legislative  favor.  The  result  of  the  change  from  legislative  to 
popular  election  of  executive  and  judicial  officers  was  to  deprive 
the  legislatures  not  only  of  much  political  and  administrative 
power,  but  also  of  some  of  the  popular  prestige  which  they  had 
originally  enjoyed  as  the  special  bulwarks  of  the  liberties  of  the 
people. 

THE  CONSTITUTIONAL  CONVENTION 

A  further  consequence  of  the  progress  of  democracy  was  the 
strengthening  of  popular  control  over  the  process  of  constitutional 
amendment  and  revision.  In  the  beginning  the  standard  prac- 
tice with  respect  to  the  framing  of  state  constitutions  was  not 


THE  REFORMATION  OF  STATE  GOVERNMENT      93 

inaugurated  by  Massachusetts  until  after  the  other  states  had 
mostly  succeeded  in  transforming  their  provisional  Revolutionary 
governments  into  permanent  constitutional  governments.  The 
first  states,  however,  to  revise  their  original  governments,  — 
New  Hampshire  in  1783,  Georgia  in  1789,  and  Pennsylvania  in 
1790,  —  adhered  more  or  less  closely  to  the  precedent  established 
by  Massachusetts.  Georgia  and  Pennsylvania,  indeed,  in  order 
to  do  so,  were  compelled  to  violate  their  existing  constitutions, 
which  had  made  other  provision  for  constitutional  revision. 
Since  then  it  has  been  generally  accepted  that  the  only  proper 
mode  of  making  any  extensive  revision  of  a  state  constitution  is 
by  a  constitutional  convention  especially  elected  for  that  purpose. 
It  was  not  at  once  generally  accepted,  however,  that  the  electorate 
should  be  consulted  before  such  a  convention  should  be  convoked, 
and  that  it  should  be  consulted  again  before  the  revised  consti- 
tution should  be  put  into  operation.  New  Hampshire  followed 
the  Massachusetts  practice  exactly.  In  Pennsylvania  a  popular 
vote  was  taken  before  the  convention  was  called,  but  afterwards 
the  people  were  consulted  only  indirectly,  and  the  revised  consti- 
tution was  put  into  effect  without  any  direct  expression  of  popular 
approval.  In  Georgia,  the  people  were  not  expressly  consulted  in 
advance,  but  the  revised  constitution  was  considered  by  two  other 
special  conventions  in  succession  before  being  declared  the  su- 
preme law  of  the  state. 

At  the  present  time,  the  constitutions  of  thirty-six  states  make 
express  provision  for  their  revision  by  constitutional  conventions. 
In  the  other  twelve  states  the  constitutions  now  in  force  contain 
no  provisions  for  the  calling  of  conventions.  The  question 
therefore  arises,  what  is  the  status  of  the  constitutional  convention 
in  those  states  where  its  existence  is  not  expressly  recognized  in 
the  written  constitution? 

Such  states  might  logically  be  divided  into  two  classes,  those 
in  which  no  express  provision  for  amendment  is  contained  in  the 
written  constitution,  and  those  in  which  some  provision  is  made 
for  amendment  through  the  agency  of  the  ordinary  legislature. 
In  the  beginning  there  were  half  a  dozen  states  in  the  former 
class.  To  deny  the  right  of  the  legislature  of  such  a  state  to  take 
the  necessary  steps  for  the  calling  of  a  convention,  would  have 
the  effect  either  of  denying  the  existence  of  any  distinction 


94         STATE  GOVERNMENT  IN  UNITED  STATES 

between  constitutional  and  ordinary  statute  law,  or  of  denying 
to  the  people  of  the  state  the  power  of  procuring  by  any  legal 
mode  of  action  a  revision  of  their  own  constitution.  Such  a  denial 
is  clearly  inconsistent  with  the  fundamental  principles  of  state 
government,  as  understood  at  the  time  of  the  Revolution.  If 
the  right  be  not  affirmed,  there  is  no  security  in  such  states  either 
for  the  maintenance  of  the  sovereignty  of  the  people  or  of  the 
reign  of  law.  In  fact  in  all  those  states  where  no  express  provision 
for  constitutional  revision  was  contained  in  the  written  consti- 
tution, the  legislatures  acted  on  the  assumption  that  they  were 
duly  authorized  by  the  unwritten  law  of  the  constitution  to  start 
the  machinery  of  constitutional  revision  by  means  of  special 
conventions.  Subsequently  all  these  states  adopted  some  express 
provision  for  constitutional  amendment,  either  by  special  con- 
ventions, or  by  special  legislative  action.  Hence  there  is  now 
no  state  in  which  there  is  not  some  provision  for  the  revision  or 
amendment  of  the  constitution.  Our  question  therefore  now 
takes  the  form,  may  not  the  express  provision  of  another  mode 
of  amendment,  in  states  where  no  mention  of  the  constitutional 
convention  is  made  in  the  written  constitution,  indicate  a  purpose 
on  the  part  of  the  people  to  dispense  with  the  mode  of  revision 
by  special  convention  ? 

There  is  some  authority  for  an  affirmative  answer  to  this 
question.  In  1883  the  question  of  calling  a  constitutional  con- 
vention was  under  discussion  in  Rhode  Island,  and  it  was  argued 
that  the  adoption  in  1842  of  the  method  of  amendment  by  legisla- 
tive action  implied  the  abandonment  by  the  people  of  the  mode  of 
revision  through  special  conventions.  The  mode  of  amendment 
adopted  by  the  people  in  1842  was  itself  recommended  by  a 
constitutional  convention,  which  at  the  same  time  made  no 
proposals  for  the  regulation  in  the  written  constitution  of  the 
process  of  revision  by  special  conventions.  There  was  no 
provision  expressly  relating  thereto  either  in  the  original  charter 
of  1663  or  in  the  acts  of  the  legislature  which  declared  that  charter 
the  supreme  law  of  the  state  in  1776.  Though  the  legislature  had 
since  then  taken  the  initiative  in  calling  the  convention  of  1842, 
the  failure  of  the  latter  convention  to  take  any  action  to  deter- 
mine the  status  of  future  constitutional  convention  indicated,  it 
was  urged,  an  intention  to  eliminate  the  constitutional  convention 


THE  REFORMATION  OF  STATE  GOVERNMENT     95 

from  the  constitutional  structure  of  state  government.  This 
opinion  was  adopted  by  the  Rhode  Island  supreme  court.1  It 
was  contended  that  there  was  precedent  for  this  opinion  in  an 
earlier  opinion  of  the  supreme  court  of  Massachusetts.2  A  careful 
study  of  the  opinion  of  the  Massachusetts  court,  however,  shows 
that  its  opinion  related  to  another  matter.3  In  no  state  has  the 
opinion  of  the  Rhode  Island  court  been  followed.  On  the  con- 
trary, the  practice  of  the  other  eleven  states  has  been  based  on 
the  recognition  of  the  right  of  the  people  through  their  repre- 
sentatives to  provide  by  law  for  the  calling  of  a  convention. 
This  right  is  construed  from  the  facts  that  the  people  undoubtedly 
possessed  the  right  in  the  beginning,  and  have  not  parted  with 
it  by  expressly  confining  amendment  to  some  other  method.4 

POPULAR  CONTROL  OF  CONSTITUTIONAL  REVISION  AND 
AMENDMENT 

The  practice  with  regard  to  the  consultation  of  the  people  before 
the  calling  of  a  constitutional  convention  has  not  yet  become  uni- 
form. In  the  greater  number  of  states  previous  consultation  of 
the  people  is  now  required  before  an  election  of  delegates  may  be 
ordered.  In  most  of  these  states  the  legislature  may  use  its 
discretion  as  to  the  time  of  consulting  the  people.5  In  several 
states,  however,  the  matter  is  not  left  to  the  discretion  of  the 
legislature.  The  constitution  requires  the  executive  officers  of 
the  state  to  submit  to  the  people  at  stated  periods  the  question 
whether  a  constitutional  convention  shall  be  called.6  The  theory 
upon  which  the  arrangements  have  been  adopted  for  a  periodical 
consideration  by  the  people  of  the  question  of  calling  a  convention 
is  this,  that  the  people  of  each  generation  should  have  an  equal 
opportunity  to  determine  for  themselves  the  forms  of  government 
under  which  they  shall  live.  Jefferson  was  an  ardent  supporter 

1  See  In  re  The  Constitutional  Convention,  14  R.  I.,  649  (1883). 
'6Cush.  573(1833)- 

*  See  post,  ch.  v. 

4  See  VV.  F.  Dodd,  The  Revision  and  Amendment  of  Stale  Constitutions,  pp.  42-46. 

*  In  twenty-seven  states. 

6  See  W.  F.  Dodd,  op.  cit.,  p.  51.  Seven  states,  but  in  most  of  these  states  the 
legislature  is  expressly  authorized  to  submit  the  question  of  calling  a  convention  at 
other  times  than  that  specified  in  the  constitution.  In  Oklahoma  it  may  submit 
the  question  when  it  pleases,  but  must  do  so  at  least  once  in  every  twenty  years. 


96         STATE  GOVERNMENT  IN  UNITED  STATES 

of  this  theory,  and  calculated  that,  in  order  that  the  majority  of 
the  voters  might,  if  they  wished,  always  live  under  a  constitution 
of  their  own  making,  the  question  of  calling  a  convention  should  be 
submitted  to  them  once  in  twenty  years.  This  accordingly  is  the 
period  most  commonly  adopted  by  those  states  in  which  provision 
is  made  for  the  periodical  submission  of  the  question  to  the  people.1 
Although  required  by  the  constitution  in  only  thirty-four  of  the 
states,  such  a  popular  vote  has  been  taken  in  most  cases  in  recent 
years.  Thus  the  practice  of  obtaining  the  popular  approval  for 
the  calling  of  a  convention  has  become  the  general  rule. 

In  many  of  the  states  which  require  submission  to  the  people  of 
the  question  of  calling  a  convention,  the  assembling  of  conven- 
tions is  still  largely  dependent  upon  legislative  action,  even  after 
the  people  have  voted  that  a  convention  be  held.  The  number 
and  apportionment  of  delegates,  the  time,  place,  and  manner  of 
election,  the  organization,  and  even  the  rules  of  procedure,  if  not 
determined  in  the  constitution  itself,  may  be  determined  by  legis- 
lative enactment.  In  such  cases  the  failure  of  the  legislature  to 
act  will  frustrate  the  will  of  the  people,  as  happened  in  New  York 
after  a  favorable  popular  vote  in  1886.  Only  three  states,  New 
York,  Michigan,  and  Missouri,  now  make  complete  provision  in 
their  constitutions  for  the  election  and  assembling  of  constitu- 
tional conventions,  but  only  ten  states  leave  these  details  altogether 
to  the  discretion  of  the  legislatures.2  In  all  the  states,  however, 
which  possess  the  direct  popular  initiative,  now  comprising 
more  than  a  third  of  the  total  number,  the  electorates  are  en- 
tirely independent  of  the  legislatures  with  respect  to  the  calling 
and  organization  of  constitutional  conventions,  regardless  of  the 
lack  of  express  regulations  in  the  constitution  itself. 

The  practice  with  regard  to  the  consultation  of  the  people  after 
the  election  of  a  convention  but  before  the  putting  into  effect 
of  a  revised  constitution  has  also  not  yet  become  uniform.  In 
New  England  the  Massachusetts  precedent  has  been  followed 
ever  since  it  was  established.  Outside  of  New  England  New  York 
in  1821  was  the  first  state  to  submit  a  revised  constitution  directly 
to  the  people  for  their  approval.  Virginia  did  likewise  in  1830. 
Thereafter  the  practice  rapidly  became  general.  Yet  at  present 
the  constitutions  of  only  nineteen  states  expressly  require  the 

1  Four  states.  2  W.  F.  Dodd,  op.  cit.,  pp.  55-57. 


THE  REFORMATION  OF  STATE   GOVERNMENT     97 

submission  of  revised  constitutions  to  the  people  for  their  ap- 
proval. In  the  others  apparently  either  the  legislature  in  issuing 
the  call  for  a  convention  may  provide  that  there  be  no  popular 
submission  of  its  revision  or  the  convention  itself  may  declare  its 
revision  in  effect  without  the  express  approval  of  the  people.1 
In  fact,  in  recent  years  there  have  been  several  conspicuous 
departures  from  the  practice  which  had  previously  been  estab- 
lished. In  five  states  conventions  have  been  held,  which,  among 
other  changes,  made  provision  for  the  elimination  of  the  negro 
vote,  and  then  declared  the  revised  constitutions  operative  with- 
out submission  to  the  people.2  Thus  the  embarrassing  question 
was  avoided,  to  which  electorate,  the  old  or  the  new,  should  the 
revised  constitution  be  submitted. 

The  result  of  the  diversity  in  the  practice  of  the  several  states 
with  respect  to  the  revision  of  their  constitutions  by  special 
conventions  is  confusing.  It  is  not  at  once  altogether  clear  pre- 
cisely what  is  the  status  of  the  constitutional  convention  in  the 
political  system  of  the  states.  At  present  the  states  must  be 
classified  into  four  groups  on  the  basis  of  the  structural  relations 
between  the  convention  and  the  other  organs  of  state  govern- 
ment. The  first  group  comprises  all  states  in  which  the  electo- 
rate exercises  a  complete  control  over  the  call,  organization,  and 
proceedings  of  constitutional  conventions.  This  control  may  be 
continuous,  as  in  the  states  which  possess  the  direct  popular 
initiative,  or  it  may  be  discontinuous,  as  in  states  such  as  New 
York,  where  the  structure  of  the  convention  is  completely  regu- 
lated by  the  constitution  itself.  The  second  group  comprises 
all  states  in  which  control  of  the  constitutional  convention  is 
divided  between  the  electorate  and  the  legislature.  The  third 
group  comprises  all  states  in  which  the  legislature  alone  exercises 
such  legal  control  as  is  recognized  to  exist.  The  states  of  this 
group,  however,  differ  widely  in  their  actual  practice.  On  the 
one  hand,  the  Massachusetts  legislature  would  doubtless  feel 
bound  by  precedent  neither  to  call  a  convention,  nor  to  authorize 
a  convention,  once  called,  to  put  its  proposed  revision  into  effect, 
without  the  express  approval  of  the  people.  On  the  other  hand, 

1  This  matter  will  be  discussed  more  fully  in  the  following  chapter. 
1  Mississippi  (1890),  South  Carolina  (1895),  Delaware  (1897),  Louisiana  (1898), 
and  Virginia  (1902).     See,  for  a  discussion  of  these  cases,  Dodd,  op.  cit.,  pp.  67-71. 

H 


98         STATE  GOVERNMENT  IN  UNITED  STATES 

the  Mississippi  legislature  might  consistently  feel  free  to  call  a 
convention  at  will  and  to  authorize  it  at  its  discretion  to  dispense 
with  any  direct  expression  of  popular  approval.  The  extent  to 
which  constitutional  conventions  in  these  three  groups  of  states 
are  subject  to  control  by  the  courts  is  a  question  that  concerns 
the  division  of  powers  and  will  be  discussed  in  that  connection. 
The  fourth  group  comprises  the  single  state  of  Rhode  Island, 
where  the  constitutional  convention  has  been  held  to  be  uncon- 
stitutional. 

In  the  beginning  there  seems  to  have  been  no  clear  recognition 
of  the  necessity  for  a  distinction  between  the  revision  and  the 
amendment  of  state  constitutions.1  In  the  original  states  the 
practice  varied.  Only  three  of  the  original  state  constitu- 
tions contained  any  special  provisions  for  their  amendment  by 
legislative  action.2  Delaware  provided  that  certain  parts  of  the 
constitution  should  not  be  subject  to  amendment  at  all,  and  that 
"no  other  part  should  be  altered  except  with  the  consent  of  five 
out  of  the  seven  members  of  the  legislative  assembly  and  seven 
out  of  the  nine  members  of  the  legislative  council."  South  Caro- 
lina also  established  a  distinction  between  the  process  of  ordinary 
legislation  and  that  of  constitutional  amendment  by  requiring 
an  exceptional  majority  for  the  adoption  of  a  measure  of  the 
latter  character.  Maryland  made  a  sharper  distinction  between 
constitutional  amendments  and  ordinary  statutes  by  requiring 
that  the  former,  having  been  adopted  by  the  legislature,  should 
be  published  at  least  three  months  before  the  election  of  the  next 
legislature,  and  then  readopted  by  the  latter,  in  order  to  become 
effective.  The  Maryland  plan  of  action  by  two  successive  legis- 
latures was  accepted  by  South  Carolina  in  1 790  and  by  Delaware 
in  1792  and  grafted  upon  their  own  original  devices.  This 
arrangement  was  generally  considered  at  the  time  to  give  adequate 
popular  control  over  the  process  of  amendment,  and  was  adopted 
in  several  other  states ;  but  the  only  state  which  still  clings  to-day 
to  a  process  of  amendment  which  makes  no  provision  for  a  special 
popular  vote  upon  each  proposed  amendment  is  Delaware. 

1  Doubtless  the  adoption  in  the  Federal  Constitution  of  1787  of  different  modes 
of  procedure  for  extensive  revisions  and  minor  amendments  brought  the  matter 
more  clearly  to  the  attention  of  the  people  of  the  states.     For  a  complete  discus- 
sion of  this  whole  subject,  see  W.  F.  Dodd,  op.  cit.,  pp.  118-132. 

2  Delaware  (1776),  Maryland  (1776),  and  South  Carolina  (1778). 


THE  REFORMATION  OF  STATE  GOVERNMENT     99 

A  somewhat  more  democratic  practice  was  adopted  in  Alabama 
in  1819.  This  consisted  in  the  provision  that  an  amendment 
proposed  by  the  legislature  should  be  voted  on  directly  by  the 
people,  instead  of  being  merely  published  for  their  information, 
but  the  power  to  take  final  action  was  still  vested  in  the  next 
succeeding  legislature.  This  plan  was  never  widely  copied,  and 
exists  to-day  in  only  two  states,  South  Carolina  and  Mississippi. 
A  still  more  democratic  practice  was  inaugurated  in  Connecticut 
in  1818.  Instead  of  placing  the  popular  vote  between  the  two 
successive  legislative  actions  the  popular  vote  was  placed  after 
the  second  legislative  action,  thus  giving  to  the  electorate  the 
final  decision,  and  making  its  action  definitive  instead  of  merely 
advisory.  The  Connecticut  plan  was  adopted  in  Maine  in  1819 
and  simplified  by  the  omission  of  the  requirement  that  a  second 
legislature  endorse  proposed  amendments,  thus  enabling  any 
legislature  to  submit  its  proposals  directly  to  the  people.  The 
Connecticut  and  Maine  plans  have  since  been  widely  copied, 
and  popular  control  over  the  process  of  amendment  through  legis- 
lative initiative  has  been  almost  completely  established.  The 
final  stage  in  the  evolution  of  the  amending  process  has  been  the 
adoption  of  the  direct  popular  initiative,  thus  dispensing  alto- 
gether with  legislative  intervention.  This  stage  was  first  entered 
upon  in  Oregon  in  1902,  and  is  now  established  in  twelve  states.1 

DEVELOPMENT  OF  THE  PARTY  SYSTEM 

Nothing  could  have  been  more  remote  from  the  minds  of  the 
Fathers  than  the  legal  recognition  of  the  political  party. 
The  deliberate  organization  of  a  party,  or  faction,  as  they  pre- 
ferred to  call  it,  represented  to  their  minds  a  stage  of  political 
depravity  but  one  degree  short  of  treason,  and  the  growth  of 
party  spirit  presaged  the  ultimate  advent  either  of  foreign  inva- 
sion or  domestic  anarchy.  Washington  devotes  the  most  im- 
pressive portions  of  his  Farewell  Address  to  a  solemn  warning 
against  the  evils  of  faction.  The  distinguished  authors  of  The 
Federalist  devote  several  numbers  2  to  an  earnest  appeal  for  the 
adoption  of  the  constitution  of  1787,  on  the  ground  that  it  will 

1  See  the  American  Year  Book  for  1015,  p.  82. 

1  See  DOS.  9  and  68  by  Hamilton,  and  nos.  10,  14,  and  47  by  Madison. 


ioo       STATE  GOVERNMENT  IN  UNITED  STATES 

mitigate  the  violence  of  faction  and  thus  promote  the  public  peace 
and  security.  De  Tocqueville,  in  his  fascinating  description  of 
American  politics,  written  after  the  first  generation  of  American 
statesmen  had  passed  from  the  stage,  still  reiterates  the  same 
pessimistic  opinions  concerning  parties.  "Parties,"  he  concedes, 
"are  a  necessary  evil  in  free  governments;"  and  he  goes  on  to 
show  why.  "Ambitious  men  will  succeed  in  creating  parties, 
since  it  is  difficult  to  eject  a  person  from  authority  upon  the  mere 
ground  that  his  place  is  coveted  by  others.  All  the  skill  of  the 
actors  in  the  political  world  lies  in  the  art  of  creating  parties. 
A  political  aspirant  in  the  United  States  begins  by  discerning  his 
own  interest,  and  discovering  those  other  interests  which  may  be 
collected  around  and  amalgamated  with  it.  He  then  contrives 
to  find  out  some  doctrine  or  principle  which  may  suit  the  purpose 
of  this  new  association,  and  which  he  adopts  in  order  to  bring 
forward  his  party  and  secure  its  popularity ;  .  .  .  This  being 
done,  the  new  party  is  ushered  into  the  political  world." 

The  American  people  themselves  seem  to  have  taken  a  less 
gloomy  view  of  the  consequences  of  party  spirit.  Francis  Lieber, 
a  political  refugee  from  Germany,  who  in  many  ways  understood 
the  American  spirit  more  correctly  than  his  brilliant  French 
contemporary,  was  certainly  more  happy  in  his  interpretation  of 
the  spirit  of  party.  As  he  was  careful  to  point  out,  no  free  coun- 
try ever  had  existed  without  parties ;  it  seemed  to  him  unlikely 
that  any  free  country  ever  would  exist  without  parties;  and 
he  did  not  hesitate  to  conclude  that  no  free  country  ought  to  exist 
without  parties.  "It  is  impossible,"  he  declared,  "for  civil  lib- 
erty to  exist  without  parties."  He  held  with  Burke  that  a  party 
is  a  "body  of  men  united  for  promoting  by  their  joint  endeavor 
the  national  interest  upon  some  particular  principle  in  which  they 
are  all  agreed."  He  believed  it  the  duty  of  the  citizen  to  join 
a  party  and  act  with  it,  so  far  as  his  intelligence  and  conscience 
would  permit,  declaring  with  Fox  that  "an  independent  man  is  a 
man  you  can  never  depend  upon."  2  This,  the  view  that  came  to 
prevail  in  the  American  states,  has  been  most  eloquently  ex- 
pressed by  Senator  G.  F.  Hoar :  "Your  party  is  but  the  instru- 
ment by  which  freemen  execute  their  will.  But  it  differs  from 

1  A.  de  Tocqueville,  Democracy  in  America,  vol.  i,  ch.  x. 
1  F.  Lieber,  Manual  of  Political  Ethics,  pt.  ii,  bk.  v,  ch.  2. 


THE  REFORMATION  OF  STATE  GOVERNMENT   101 

other  instruments  in  this.  It  is  an  indispensable  instrument 
made  up  of  the  men,  and  practically  of  all  the  men,  who  wish  to 
accomplish  the  things  you  wish  to  accomplish  and  deem  it  vital 
to  the  prosperity,  honor,  and  glory  of  your  country.  It  is  an 
instrument  itself  possessing  intelligence,  judgment,  conscience, 
purpose,  will."  l 

At  all  events,  for  better  or  for  worse,  organized  political  parties 
sprang  into  being  before  the  state  governments  were  established, 
and,  with  the  extension  of  democracy,  grew  ever  stronger  and 
more  active.  By  the  time  when  De  Tocqueville  and  Lieber 
were  forming  their  impressions  of  American  government,  the 
habit  of  party  regularity  had  become  firmly  established,  and  the 
forms  of  party  organization  were  already  well  developed.  These 
consequences  of  the  democratization  of  the  electorates  are  com- 
monly associated,  therefore,  with  the  advent  of  the  Jacksonian 
democracy.  In  fact,  however,  they  were  the  cause  rather  than 
the  result  of  the  advent  of  the  Jacksonian  democracy.  Party 
spirit  began  to  flourish  on  a  national  scale  when  the  American 
colonists  were  first  divided  into  Whigs  and  Tories,  and  party 
organization  began  to  develop  with  the  creation  of  the  Revolu- 
tionary committees  of  correspondence.  A  political  party  is  any 
two  or  more  persons  acting  together  for  the  purpose  of  influencing 
the  result  of  an  election.  The  organization  of  parties  is  inevitable 
wherever  an  electoral  system  exists  which  awards  the  election  to 
the  person  receiving  the  plurality  of  votes,  for  voters  will  inevi- 
tably unite  for  the  purpose  of  casting  the  greatest  possible  number 
of  votes  for  a  mutually  acceptable  candidate. 

Originally  nominations  for  offices  to  be  filled  by  popular  election 
were  made  by  town  and  village  caucuses  or  county  mass-meetings. 
In  the  New  England  states  and  New  York,  where  the  governors 
were  elected  by  the  state  at  large,  the  problem  of  party  organiza- 
tion was  more  difficult.  Gubernatorial  candidates  were  com- 
monly nominated  by  legislative  caucuses,  assisted  in  some  cases 
by  special  representatives  from  districts  not  represented  in  the 
legislature  by  members  of  the  party  concerned,  or  by  mass  meet- 
ings at  the  seat  of  the  state  government.  The  delegate  conven- 
tion, or  representative  form  of  party  organization,  originated  in 

1  George  Frisbie  Hoar,  Good  Advice  to  Young  Vottrs,  Speech  at  Worcester,  Mass., 
Aug.  21,  1884. 


102        STATE  GOVERNMENT  IN  UNITED  STATES 

the  middle  states,  where  county  conventions  were  held  at  the 
county  seats  in  order  to  make  more  representative  nominations 
than  were  possible  at  casual  mass-meetings.1  In  New  England 
most  county  officers  were  not  then  elected  directly  by  the  people, 
and  in  the  South  the  aristocratic  character  of  local  government 
rendered  formal  party  organization  unnecessary. 

The  demand  for  more  effective  party  organization  in  the  states 
arose  partly  because  of  the  increasing  adoption  of  the  direct 
election  of  governors  and  partly  because  of  the  then  common 
practice  of  electing  congressmen  from  the  state  at  large.  The 
response  to  the  demand  came  first  in  the  middle  states,  partly 
because  hi  those  states  the  delegate  convention  developed  first 
in  the  county,  and  partly  because  the  democratic  middle  states 
county  formed  a  more  convenient  basis  for  the  state  delegate 
convention  than  the  democratic  New  England  town  or  the  aristo- 
cratic southern  county.  Delaware  seems  to  have  been  the  first 
state  in  which  the  state  delegate  convention  was  permanently 
established.  In  New  Jersey,  and  even  more  in  Pennsylvania  and 
New  York,  the  greater  distances  made  more  difficult  the  substi- 
tution of  the  state  delegate  convention  for  the  legislative  caucus. 
In  Delaware  the  state  convention  was  established  during  the 
presidency  of  Jefferson,  and  in  the  middle  states  generally  the 
legislative  caucus  had  yielded  to  the  delegate  convention  by  the 
end  of  Monroe's  administration.  In  New  England  the  develop- 
ment of  the  state  convention  was  slower,  and  was  not  completed 
in  Massachusetts  until  the  time  of  Jackson.  The  representative 
form  of  party  organization  was  established  in  the  west  during  the 
same  period,  and  by  the  tune  when  the  first  national  conventions 
were  held  (1830-32),  the  delegate  convention  had  become  the 
accepted  form  of  party  organization  everywhere  except  in  the 
South.  The  extension  of  popular  control  over  the  executive  and 
judicial  branches  of  state  government  increased  the  demand  for 
efficient  nominating  machinery  in  the  states,  and  strengthened 
both  the  habit  of  party  regularity  and  the  representative  form  of 
party  organization. 

The  delegate  convention  system  ultimately  fell  under  the  sus- 
picion of  lending  itself  too  easily  to  manipulation  by  persons  who 

1  See  G.  D.  Luetscher,  Early  Political  Machinery  in  the  United  States;  also  F.  W. 
Dallinger,  Nominations  to  Elective  Office,  ch.  i. 


THE  REFORMATION  OF  STATE  GOVERNMENT     103 

could  not  command  the  confidence  of  a  majority  of  the  rank  and 
file  of  the  parties.  The  chief  criticisms  brought  against  the 
system  may  be  summarized  as  follows :  (i)  the  creation  of  irre- 
sponsible party  leadership ;  (2)  the  exclusion  of  the  rank  and  file 
from  effective  participation  in  the  management  of  party  affairs ; 
(3)  the  recognition  by  candidates  of  responsibility  not  to  their 
constituents,  nor  even  to  the  voters  belonging  to  their  party, 
but  to  the  "bosses"  to  whom  they  realized  that  they  owed  their 
nominations ;  and  (4)  the  possibility  of  political  domination  by 
private  "  interests  "  through  the  connivance  of ' '  bosses  "  in  control 
of  party  organizations.1  These  criticisms  eventually  led  to  the 
reformation  of  party  organization  in  the  western  and  northern 
states  by  the  enactment  of  laws  requiring  that  political  parties 
should  make  their  nominations  in  primary  elections  at  which  the 
party  members  should  vote  directly  for  the  candidates  of  their 
choice.  The  first  state-wide  direct  primary  laws  were  enacted 
in  Wisconsin  in  1903  and  in  Oregon  in  1904.  The  system  rapidly 
spread  to  all  the  western  and  northern  states  with  not  more  than 
half-a-dozen  exceptions.2  In  the  southern  states  the  direct 
primary  was  meanwhile  being  established,  first  by  voluntary 
party  rule,  later  by  statute,  primarily  for  the  purpose  of  facilitat- 
ing the  elimination  of  the  negro  vote.3 

The  legal  recognition  of  the  political  party  as  an  independent 
organ  of  government  preceded  the  establishment  by  law  of  the 
direct  primary  as  a  mode  of  making  party  nominations.  There 
were  several  stages  in  the  evolution  of  the  party  into  an  organ  of 
government.  First,  there  was  the  gradual  recognition  by  public 
opinion  of  the  growing  importance  of  party  organizations  with  re- 
spect to  the  conduct  of  the  elections.  This  stage  in  the  evolution 
of  the  party  was  well  advanced  by  1840.  Next  came  the  demand 
that  partisan  primary  elections  be  surrounded  by  the  same  legal 
safeguards  against  bribery,  intimidation,  and  other  corrupt 
practices  as  had  been  established  for  the  protection  of  voters  at 
public  general  elections.  This  stage  was  formally  initiated  by  the 

1  See  J.  Bryce,  The  American  Commonwealth,  pt.  Hi.  See  also  Gov.  Charles  E. 
Hughes,  Message  to  N.  Y.  Legislature,  1910. 

1  See  C.  E.  Merriam,  Primary  Elections,  1909,  and  American  Year  Book,  1910- 
1916. 

1  See  post,  ch.  vii. 


io4       STATE   GOVERNMENT  IN  UNITED  STATES 

adoption  of  the  first  laws  regulating  the  conduct  of  primary 
elections  in  New  York  and  California  in  1866.  The  recognition 
of  the  importance  of  preventing  corrupt  practices  in  primary 
elections  held  for  the  choice  of  party  officers  and  candidates  or  of 
delegates  to  nominating  conventions  gradually  led  to  the  recogni- 
tion of  the  importance  of  regulating  the  management  of  party 
affairs  in  other  respects,  until  eventually  the  whole  structure  of 
party  organization  was  brought  under  public  control.  The 
transition  to  this  stage  was  precipitated  by  the  introduction  of  the 
official  ballot  at  general  elections,  beginning  in  Massachusetts  in 
1888. 

The  final  stage  in  the  evolution  of  the  party  into  an  organ 
of  government  coincides  with  the  extension  to  the  primary  of  the 
whole  machinery  of  electoral  regulation  and  the  assimilation  of 
the  primary  to  an  ordinary  public  election,  conducted  by  public 
officers.  This  stage  was  inaugurated  by  the  establishment  of  the 
state-wide  direct  primary  and  has  been  characterized  by  the 
gradual  development  of  corrupt  practices  legislation,  applying 
to  primary  and  general  elections  alike,  and  the  gradual  assump- 
tion by  the  state  of  an  increasing  share  of  the  cost  not  only  of 
elections  but  of  electioneering  in  general.  The  arrival  of  this 
stage  is  clearly  indicated  by  the  adoption  of  laws  in  Colorado  in 
1909  (later  declared  unconstitutional)  and  in  Oregon  in  1910 
appropriating  public  money  to  the  personal  use  of  candidates  for 
office  or  delegates  to  political  conventions,  and  of  other  laws  in 
Oregon  and  Wisconsin  at  about  the  same  time  making  provision 
for  the  publication  of  official  campaign  bulletins,  partly  at  public 
expense,  for  the  use  of  candidates  for  nomination  and  of  political 
parties  as  such.  The  political  party  in  most  states  is  now  as 
much  a  part  of  the  legal  machinery  of  government  as  is  the 
election  district  or  any  other  formal  subdivision  of  the  electorate. 

SUMMARY 

At  the  present  time  there  is  a  remarkable  degree  of  uniformity 
in  the  general  structure  of  state  government.  All  the  states 
possess  bicameral  legislatures,  and  almost  all  possess  plural 
executives,  an  independent  judiciary,  comparatively  broad 
electorates  (except  for  the  elimination  of  the  negro  vote  in  the 


THE  REFORMATION  OF  STATE   GOVERNMENT     105 

South),  well-developed  systems  of  constitutional  amendment  and 
revision,  and  political  parties  elaborately  organized  by  authority 
of  law.  With  respect,  however,  to  the  organization  and  pro- 
cedure of  the  legislative,  executive,  and  judicial  departments, 
no  two  states  pursue  a  precisely  identical  practice.  In  many 
instances  the  variations  are  wide,  and  exercise  a  profound  effect 
on  the  actual  conduct  of  state  affairs.  The  most  important 
differences  among  the  existing  governments  of  the  states,  how- 
ever, result  less  from  differences  in  the  forms  of  their  governments 
than  from  those  in  the  division  of  powers. 


CHAPTER  V 
THE  REDIVISION   OF  POWERS 

THE  original  division  of  powers  between  the  three  departments 
of  government  was  based  upon  the  theory  that  a  concentration  of 
powers  in  any  one  department  would  lead  to  tyranny  and  oppres- 
sion. In  New  York,  Massachusetts,  and  New  Hampshire  this 
theory  was  acted  upon  hi  a  logical  manner.  The  powers  of  the 
legislative,  executive,  and  judicial  branches  of  these  three  state 
governments  were  so  adjusted  that  each  should  serve  as  a  check 
upon  the  others  and  a  balance  be  thereby  established  between 
them.  In  the  other  states  the  doctrine  of  checks  and  balances 
was  either  not  properly  understood  or  unintelligently  applied, 
and,  except  in  Pennsylvania  and  Vermont,  there  was  no  apparent 
check  to  the  supremacy  of  the  legislatures.  In  Pennsylvania 
and  Vermont  the  censorial  system  failed  to  operate  as  an  effective 
substitute  for  the  system  of  checks  and  balances,  and  hence  in  all 
but  three  of  the  original  states  the  original  division  of  powers  was 
defective.  It  became  necessary  either  to  alter  the  division  of 
powers  or  to  abandon  the  theory  upon  which  the  Fathers  professed 
to  establish  the  original  state  governments. 

REACTION  AGAINST  SYSTEM  OF  LEGISLATIVE  SUPREMACY 

The  logic  of  events  favored  the  redivision  of  powers.  As 
Jefferson  pointed  out,  one  hundred  and  seventy-three  or  any  other 
number  of  despots  were  as  objectionable  as  one,  and  an  elective 
tyranny  was  not  the  government  for  which  the  people  had  fought. 
In  fact,  the  state  legislatures  began  to  lose  prestige  from  the 
beginning.  In  Pennsylvania  the  unreliability  of  the  early  legisla- 
tures was  revealed  by  the  first  council  of  censors.  In  the  other 
states  where  the  system  of  legislative  supremacy  originally  pre- 
vailed there  was  no  'equally  effective  means  of  revealing  legislative 

106 


THE  REDIVISION  OF  POWERS  107 

usurpation  and  incapacity,  and  the  confidence  of  the  people  in  the 
ability  and  integrity  of  their  representatives  was  too  strongly 
entrenched  to  be  easily  destroyed.  During  the  Revolutionary 
War  the  legislative  system  was  under  an  exceptional  strain,  and 
the  people  were  prone  to  believe  that  with  the  return  of  peace 
there  would  be  a  return  on  the  part  of  their  representatives  to 
constitutional  modes  of  government.  In  Virginia  members  of 
one  early  legislature  in  a  moment  of  panic  caused  by  a  British 
invasion  went  so  far  as  to  suggest  the  appointment  of  a  dictator 
after  the  fashion  of  the  ancient  Romans.  Jefferson  was  then 
governor,  and  later  enemies  of  his  have  ascribed  the  suggestion 
of  a  dictator  to  consciousness  of  executive  rather  than  of  legisla- 
tive weakness.  Certainly  the  system  of  government  which  then 
existed  in  Virginia  was  characterized  by  executive  weakness,  but 
the  failure  of  the  particular  government  over  which  Jefferson  pre- 
sided to  deal  effectively  with  foreign  invasion  reflected  more  dis- 
credit upon  an  omnipotent  but  incapable  legislature  than  upon  the 
unfortunate  holder  of  a  shadowy  executive  authority.  After  the 
close  of  the  war  the  conduct  of  the  legislatures  failed  to  restore  a 
somewhat  shaken  confidence.  During  the  trying  period  between 
the  achievement  of  independence  and  the  establishment  of  the 
"more  perfect  union"  under  the  constitution  of  1787,  appro- 
priately described  by  John  Fiske  as  the  critical  period  of  American 
history,  the  state  legislatures  showed  themselves  clearly  unequal 
to  the  tasks  which  they  had  assumed. 

The  primary  reason  for  their  failure  to  justify  the  public  con- 
fidence they  had  originally  enjoyed  was  their  inability  to  take  a 
national  view  of  national  problems.  The  Continental  Congress 
could  neither  raise  money,  enforce  its  treaties  with  foreign  powers, 
nor  regulate  commerce  between  the  states  and  other  matters  of 
common  concern,  without  the  cooperation  of  the  separate  states, 
and  the  legislatures  of  the  separate  states  proved  to  be  under  the 
control  of  local  interests.  It  became  necessary  to  deprive  the 
state  legislatures  of  their  original  responsibility  for  the  manage- 
ment of  national  affairs,  and  this  was  effectually  done  in  the 
Federal  Constitution  of  1787. 

A  second  reason  for  the  failure  of  the  state  legislatures  to  pre- 
serve the  public  confidence  they  had  originally  enjoyed  was  their 
inability  to  deal  with  state  problems  in  the  interest  of  the  whole 


108       STATE  GOVERNMENT  IN  UNITED  STATES 

people  of  their  respective  states.  The  individual  legislator,  in- 
stead of  representing  the  people  of  the  whole  state,  was  prone  to 
regard  himself  as  the  representative  of  his  district,  or  of  some 
other  local  or  private  interest,  and  strove  mainly  to  protect  his 
own  special  interest,  or  at  best  to  promote  the  prosperity  of  his 
own  particular  district.  During  the  colonial  period,  when  the 
responsibility  for  the  conduct  of  government  rested  mainly  on  the 
executive,  the  predominance  of  local  interests  in  the  legislative 
branch  served  as  a  salutary  check  upon  the  executive  tendency  to 
prefer  imperial  to  local  interests  of  any  sort.  But  when  sover- 
eignty passed  from  the  crown  to  the  people,  the  legislature  be- 
came the  chief  representative  of  the  new  sovereign,  and  the 
predominance  of  local  and  private  interests  signified  the  subver- 
sion of  the  general  public  interest.  The  failure  of  the  state  legis- 
latures properly  to  manage  the  internal  affairs  of  the  separate 
states  was  less  menacing  to  the  independence  and  prosperity  of 
the  nation  than  their  failure  in  the  conduct  of  national  affairs, 
but  it  was  sufficiently  disastrous  to  the  common  welfare  to  pro- 
duce a  general  reaction  against  the  original  system  of  unchecked 
legislative  supremacy. 

The  enactment  of  special  laws  for  the  benefit  of  private  individ- 
uals, without  due  regard  for  the  interests  of  the  public,  was  one 
of  the  earliest  and  most  serious  abuses.  Such  laws  were  fre- 
quently enacted  in  the  interest  of  persons  desiring  to  speculate  in 
public  lands,  or  to  secure  the  improvement  of  local  roads  and 
bridges  in  the  furtherance  of  land  speculations.  The  power  to 
change  names  and  to  grant  divorces  by  special  act  was  another 
source  of  frequent  abuse.  Later,  the  growth  of  the  practice  of 
doing  business  under  corporate  forms  led  to  an  inordinate  demand 
for  the  grant  by  special  legislation  of  charters  of  incorporation  and 
exclusive  or,  at  least,  extraordinary  privileges  therewith.  Land 
companies,  banking  companies,  turnpike  and  canal  and  later  rail- 
road companies,  finally  public  utility  companies  and  manufactur- 
ing and  trading  companies  of  all  sorts,  resorted  to  the  legislatures 
for  all  manner  of  special  privileges.  Legislators  were  tempted  to 
use  their  power  for  partisan  and  personal  ends,  and  all  too  often 
there  was  open  and  shameless  barter  of  valuable  special  privileges 
for  private  gain,  without  regard  for  the  interests  of  the  public. 
Sometimes  this  abuse  of  power  was  the  result  of  ignorance  of  the 


THE  REDIVISION  OF  POWERS  109 

public  interest,  sometimes  of  indifference  to  the  public  welfare, 
sometimes  of  negligence  or  incompetence,  sometimes  of  down- 
right corruption. 

Similarly  unfortunate  conditions  resulted  from  the  abuse  of 
legislative  power  to  pass  local  acts.  Public  money  was  freely 
appropriated  for  local  improvements,  not  in  order  to  carry  out  a 
general  plan  for  the  general  improvement  of  the  state,  but 
primarily  in  order  to  promote  purely  local  interests  or  even  merely 
personal  interests  not  shared  by  any  locality.  Legislative  majori- 
ties for  such  appropriations  were  secured  by  the  practice  of  log- 
rolling. The  separate  local  or  personal  projects  of  a  majority  of 
the  legislature  were  combined  into  one  general  measure  which 
would  be  supported  by  those  interested  in  the  combination  for  the 
sake  of  what  each  would  severally  get  out  of  it,  or  the  same  result 
was  secured  by  means  of  promises  of  mutual  aid  for  one  another's 
projects.  The  public  interest  was  lost  to  view.  Much  legisla- 
tion relating  to  the  organization  and  administration  of  local 
government  was  also  enacted  in  furtherance  of  private  ends. 
Thus  the  establishment  of  county  boundaries  and  the  location 
of  county  seats,  the  incorporation  of  cities  and  the  regulation  of 
municipal  powers,  and  above  all,  the  demarcation  of  congressional 
and  state  legislative  districts,  were  frequently  prompted  by  per- 
sonal or  partisan  considerations.  Taxes  were  sometimes  levied 
less  for  the  sake  of  the  revenue  they  would  bring  than  for  the 
purpose  of  favoring  some  special  interest,  and  tax  exemptions 
were  granted,  not  because  the  legislatures  were  convinced  that 
they  were  for  the  public  interest,  but  because  private  interests 
were  able  to  extort  them  from  subservient  legislators.  States 
borrowed  money  to  finance  enterprises  that  no  prudent  citizen 
would  have  ventured  to  undertake  at  his  private  risk,  and  the 
public  credit  was  extended  to  suave  speculators  whose  only  assets 
were  their  cheerful  readiness  to  promote  undertakings  on  the 
credit  of  the  public  when  private  credit  was  withheld  from  them. 
Such  operations  may  be  justified  by  success,  but  unfortunately 
success  was  too  often  denied. 

The  reaction  against  the  system  of  legislative  supremacy  took 
the  form  primarily  of  a  demand  for  the  restriction  of  the  powers 
of  the  legislatures.  In  practice  this  meant,  in  the  first  instance, 
a  demand  for  the  establishment  of  a  system  of  checks  and  bal- 


no       STATE  GOVERNMENT  IN  UNITED  STATES 

ances  modeled  upon  that  of  Massachusetts  or  New  York.  The 
imposition  of  restrictions  upon  the  authority  of  the  legislatures, 
however,  could  not  be  stopped  at  the  point  where  it  had  been 
begun  in  the  constitutions  drafted  by  Adams  and  Jay.  Direct 
constitutional  limitations  upon  legislative  powers  were  imposed 
with  ever  growing  frequency  and  effect. 

The  reaction  against  the  system  of  legislative  supremacy  took 
the  form  secondarily  of  a  demand  for  the  extension  of  the  powers 
of  the  electorates.  In  practice  this  meant  hi  the  first  instance  a 
demand  for  the  democratization  of  the  forms  of  government. 
The  extension  of  the  powers  of  the  electorates,  however,  could 
not  be  stopped  when  executive  and  judicial  officers  had  been 
made  elective  by  the  people,  and  thus  rendered  comparatively 
independent  of  legislative  control.  Ultimately  constitutional 
reformers  began  to  demand  that  the  electorates  have  power  to 
veto  legislative  enactments  on  their  own  motion,  and,  if  necessary, 
to  enact  their  own  measures  independently  of  the  legislatures. 
Neither  the  restriction  of  the  powers  of  the  legislatures  nor  the 
extension  of  those  of  the  electorates  could  be  accomplished  with- 
out profoundly  affecting  the  position  of  the  constitutional  con- 
vention, and,  indirectly,  of  the  judiciary.  Finally,  the  division 
of  legislative  authority  and  the  extension  of  the  work  of  the  electo- 
rates has  stimulated  an  unprecedented  growth  of  political  parties 
and  the  development  of  a  thoroughly  partisan  system  of  govern- 
ment. The  result  has  been  an  extensive  and  in  part  unpremedi- 
tated redivision  of  powers  between  the  several  departments  of 
government. 

THE  EXECUTIVE  VETO 

The  most  conspicuous  feature  of  the  system  of  checks  and 
balances  originally  established  in  Massachusetts  was  the  execu- 
tive veto.  The  veto  upon  legislative  enactments  was  exercised 
by  the  governor  at  discretion,  subject  to  the  power  of  the  legisla- 
ture to  reenact  a  vetoed  measure  by  a  two-thirds  vote.  In  New 
York  the  veto  was  originally  exercised  subject  to  the  same  qualifi- 
cation by  the  council  of  revision,  in  which  the  judicial  element  was 
preponderant. 

The  growing  distrust  of  unchecked  legislative  supremacy  was 
reflected  first  in  the  Federal  Convention  of  1787.  The  conserva- 


THE  REDIVISION  OF  POWERS  in 

live  leaders  who  controlled  that  body  preferred  the  pure  form  of 
executive  veto  established  in  Massachusetts  to  the  mixed  form 
established  in  New  York,  and  the  action  of  the  Federal  Conven- 
tion greatly  influenced  the  subsequent  action  of  the  states.  The 
first  states  to  revise  their  original  constitutions  after  the  adoption 
of  the  Federal  Constitution  were  Georgia  in  1789  and  Pennsyl- 
vania in  1790.  Both  adopted  the  Massachusetts  form  of  the  veto. 
New  Hampshire,  which  had  imitated  the  original  Massachusetts 
constitution  in  most  respects  but  had  not  conferred  the  veto 
power  upon  the  governor,  did  so  in  1792.  In  the  same  year 
Kentucky,  the  first  western  state  to  enter  the  union,  armed  its 
governor  with  the  executive  veto.  The  Massachusetts  form  of 
the  veto  for  a  time  seemed  likely  to  win  universal  acceptance. 
The  New  York  form  was  not  introduced  in  any  other  state  except 
Illinois,  which  inserted  a  provision  for  the  mixed  executive  and 
judicial  veto  in  its  original  constitution  of  1818.  The  New  York 
form  was  abandoned  in  that  state  in  1821  and  the  Massachusetts 
form  substituted.  By  that  time  the  existence  of  the  pure  judicial 
veto,  derived  from  the  power  of  judicial  review  of  legislative  and 
executive  decisions  involving  the  interpretation  of  the  constitu- 
tion, had  become  generally  recognized,  and  the  continuance  of  a 
special  council  of  revision  was  seen  to  be  unnecessary.  The 
action  of  New  York  in  1821  marks  the  complete  development  of 
the  separate  executive  and  judicial  veto  powers.1 

The  general  adoption  of  the  Massachusetts  form  of  executive 
veto  was  obstructed  by  the  rising  tide  of  democracy  in  the  states. 
The  feeling  grew  strong  that  the  governor  might  well  be  em- 
powered to  delay  legislative  action  and  compel  reconsideration  of 
measures  of  doubtful  constitutionality  or  expediency,  but  ought 
not  to  be  entrusted  with  the  power  to  defeat  the  matured  pur- 
poses of  the  people's  representatives.  In  1792  Delaware,  while 
providing  for  the  popular  election  of  the  governor,  declined  to 
entrust  him  with  the  veto  power.  Tennessee,  upon  entering  the 
Union  in  1796,  and  Ohio,  six  years  later,  did  likewise.  In  1799 
Kentucky  revised  her  original  constitution  and  incidentally  re- 
vised the  power  of  executive  veto.  The  new  arrangement  pro- 
vided that  the  governor  might  veto  any  legislative  enactment  at 
discretion,  but  that  the  legislature  might  reenact  any  vetoed 

1  See  C.  Z.  Lincoln,  Constitutional  History  of  Neu'  York,  i,  pp.  743-749. 


112        STATE   GOVERNMENT  IN  UNITED  STATES 

measure,  if  the  measure  was  approved  by  a  majority  of  all  the 
members  elected  to  the  legislature.  Thus  the  governor  could 
prevent  the  enactment  of  legislation  by  less  than  a  clear  majority 
of  the  whole  legislature,  but  he  could  not  defeat  the  will  of  a  con- 
stitutional majority.  During  the  succeeding  half  century  the 
executive  veto  was  established  in  fifteen  states,  in  a  majority  of 
which  the  Kentucky  form  of  veto  was  adopted.  By  1850  only 
six  of  the  original  states  were  still  without  any  form  of  executive 
veto,  and  all  the  new  states  admitted  after  Ohio  possessed  it  in 
some  form. 

Meanwhile,  the  position  of  the  governor  as  the  special  repre- 
sentative of  the  whole  people  of  his  state  had  been  clearly  estab- 
lished, and  public  opinion  was  more  generally  disposed  to  sanc- 
tion a  vigorous  use  of  his  authority.  Since  1850  the  executive 
veto  has  been  established  in  all  the  states  but  one,  North  Carolina, 
and  with  only  one  exception,  West  Virginia,  these  states  adopted 
the  Massachusetts  form.  During  the  same  period  the  Kentucky 
form  has  been  abandoned  in  three  states  and  the  Massachusetts 
form  substituted.  The  final  victory  of  the  Massachusetts  form 
of  executive  veto  was  won  when  the  people  recognized  that  such 
power  was  not  inconsistent  with  the  progress  of  democracy,  but 
on  the  contrary  was  essential  to  it. 

Since  the  Civil  War  the  executive  veto  has  been  further 
strengthened  by  an  increase  of  the  legislative  majorities  required 
to  pass  measures  over  the  veto.  It  had  been  discovered  that  the 
vote  upon  measures  was  frequently  so  small  that  the  two- thirds 
required  to  overrule  a  veto  might  actually  be  much  less  than  a 
majority  of  the  whole  legislature.  In  Pennsylvania  in  1873,  and 
in  New  York  in  1874  the  requirement  was  therefore  changed  from 
two-thirds  of  those  present  and  voting  on  a  measure  to  two-thirds 
of  all  the  members  elected  to  the  legislature.  Similar  changes 
have  since  been  made  in  more  than  a  third  of  the  states,  and  the 
position  of  the  governor  as  the  special  representative  of  the  state 
as  a  whole  has  been  correspondingly  strengthened. 

A  new  stage  in  the  development  of  the  executive  veto  was 
inaugurated  in  New  Jersey  in  1844.  It  had  been  discovered  that 
the  veto  in  its  original  form  was  not  suited  for  dealing  effectively 
with  appropriation  bills.  Bills  containing  proper  appropriations 
for  necessary  expenditures  might  also  contain  objectionable 


THE  REDIVISION  OF  POWERS  113 

items,  and  a  governor  would  be  forced  to  approve  the  objection- 
able with  the  rest  or  veto  the  whole  bill.  Legislatures  with  im- 
proper designs  upon  the  public  treasury  could  place  all  appro- 
priations hi  a  single  bill  and  thus  force  the  hand  of  the  executive, 
and  could  even  use  an  important  appropriation  bill  as  a  vehicle 
for  carrying  objectionable  measures  relating  to  entirely  different 
subjects.  Hence,  when  the  executive  veto  was  established  in 
New  Jersey,  it  was  provided  that  the  governor  might  veto  not 
only  any  act  as  a  whole,  but  also  any  item  of  an  appropriation  act. 
This  provision  was  subsequently  adopted  in  the  constitution  of  the 
southern  Confederacy,  and  thereafter  was  generally  adopted  in  the 
states  of  the  South.  The  same  provision  was  adopted  in  Penn- 
sylvania in  1873  and  in  New  York  in  1874,  and  thereafter  spread 
rapidly  throughout  the  North  and  West.  At  the  present  time  this 
provision  exists  hi  nearly  two-thirds  of  the  states.  A  further 
extension  of  the  same  principle  was  adopted  in  Washington  in 
1889,  whereby  the  governor  is  authorized  to  veto  not  only  any 
bill  but  any  part  of  any  bill,  whether  it  relates  to  appropriations 
or  not.  This  provision  has  since  been  adopted  in  two  other  states. 
The  executive  veto  power  is  to-day  more  widely  extended  and 
more  strongly  fortified  than  at  any  previous  time.1 

The  power  of  the  executive  has  been  further  fortified  by  the 
adoption  of  restrictions  upon  the  eligibility  of  members  of  the 
legislature  for  appointment  to  office.  A  number  of  states  have 
provided  that  no  member  of  the  legislature  shall  be  appointed 
to  any  office  which  has  been  created,  or  the  emoluments  of  which 
have  been  increased,  during  his  term  of  service  in  the  legislature. 
This  restriction  is  nominally  a  restriction  upon  the  executive 
power  of  appointment,  but  actually  it  operates  to  protect  the 
chief  executive  against  the  demands  of  legislators  who  would 
trade  support  for  executive  measures  in  exchange  for  promises  of 
appointment  to  office. 

The  strengthening  of  the  executive  veto  and  power  of  appoint- 
ment, together  with  the  abolition  of  the  original  executive  coun- 

1  The  development  of  the  executive  veto  is  well  illustrated  by  the  case  of  Illinois. 
Beginning  in  1818  with  the  original  New  York  plan  of  mixed  executive  and  judi- 
cial veto,  the  people  adopted  the  Kentucky  plan  in  1848;  in  1870  the  requirement 
of  a  two-thirds  vote  of  all  elected  members  to  override  a  veto  was  introduced,  and 
in  1884  the  veto  was  extended  to  items  of  appropriation  bills. 


ii4       STATE  GOVERNMENT  IN  UNITED  STATES 

cils  and  the  establishment  of  independence  of  tenure  for  the  chief 
executive  through  direct  popular  election,  sufficed  to  create  a 
continuous  check  upon  legislative  authority.  This  check,  how- 
ever, is  not  yet  as  effective  in  most  states  as  that  originally 
established  in  Massachusetts,  because  of  the  existence  of  the 
senatorial  power  of  blocking  appointments.  In  Massachusetts, 
especially  since  the  council  was  made  elective  by  the  people,  the 
governor  has  been  independent  of  the  legislature  in  the  making  of 
appointments.  The  original  Massachusetts  system  still  exists  in 
New  Hampshire  and  Maine.  Elsewhere  the  governor's  appoint- 
ments are  dependent  on  the  approval  of  the  upper  branch  of  the 
legislature.  The  power  of  the  executive  to  check  the  enactment 
of  legislation  is  limited  by  the  power  of  the  legislature  to  check  the 
distribution  of  patronage.  Everywhere  the  influence  of  the 
executive  upon  legislation  is  checked  by  legislative  control  of 
the  appropriations  necessary  for  the  maintenance  of  executive 
authority.  The  power  of  the  purse  still  remains,  as  it  was  in 
colonial  times,  the  great  bulwark  of  legislative  authority. 

THE  JUDICIAL  VETO 

A  less  conspicuous  feature  of  the  system  of  checks  and  balances 
originally  established  in  Massachusetts  was  the  judicial  veto. 
The  power  of  judicial  review  of  the  constitutionality  of  legislative 
enactments  springs  from  the  obligation  of  deciding  what  law 
applies  in  a  case  where  there  is  a  conflict  of  laws.  Since  the  courts 
must  apply  the  higher  law,  the  duty  is  plain  to  declare  the  legisla- 
tive enactment  unconstitutional  when  constitutions  and  statutes 
conflict. 

This  duty  of  the  judiciary  was  implied  in  the  original  theory  of 
American  government,  but  the  original  forms  of  government  in 
most  of  the  states  were  not  such  as  to  facilitate  its  effective  per- 
formance. Indeed,  it  is  probable  that  the  people  generally  were 
unconscious  of  the  existence  of  any  such  judicial  duty.  Even  in 
the  few  states  which  originally  made  express  provision  for  the 
exercise  of  the  power  of  judicial  review,  the  power  was  by  no 
means  so  potent  as  it  has  since  become.  In  New  York  the  judicial 
element  controlled  the  council  of  revision,  but  the  council  of  revi- 
sion was  compelled  to  act  before  final  action  by  the  legislature  and 


THE  REDIVISION  OF  POWERS  115 

could  be  overruled  by  two-thirds  majorities  of  the  latter.  The 
final  court  of  appeal  in  New  York  was  controlled  by  the  senate, 
which  was  not  primarily  a  judicial  body  at  all.  In  Massachusetts 
and  New  Hampshire  the  power  of  judicial  review  was  qualified 
by  the  provision  that  the  legislature  or  governor  could  ask  the 
judges  of  the  supreme  judicial  court  for  their  opinion  of  the  con- 
stitutionality of  a  proposed  measure  in  advance  of  its  enactment. 
Clearly  the  veto  of  unconstitutional  legislation  by  the  courts  was 
intended  to  be  an  exceptional  rather  than  a  regular  use  of  judicial 
power. 

The  possibilities  of  the  power  of  judicial  review  were  clearly 
grasped  by  the  leaders  in  the  Federal  Convention  of  1787,  and 
the  people  of  the  country  were  made  familiar  with  its  vigorous 
exercise  by  John  Marshall.  The  adoption  of  the  Massachusetts 
type  of  executive  veto  in  New  York  in  1821  involved  the  recogni- 
tion in  that  state  of  a  separate  power  of  judicial  veto,  and  that 
date  may  be  accepted  as  marking  the  period  of  its  general  recogni- 
tion by  the  people  of  the  states.  The  most  effective  use  of  the 
power  of  judicial  veto,  however,  was  dependent  upon  the  estab- 
lishment of  judicial  independence  of  the  state  legislatures,  a  pro- 
cess which  was  not  completed  in  most  of  the  states  until  the  adop- 
tion of  the  popular  election  of  judges  towards  the  middle  of  the 
century.  When  De  Tocqueville  paid  his  memorable  visit  to  the 
United  States  during  the  presidency  of  Andrew  Jackson,  the 
practice  had,  nevertheless,  already  become  well  established. 

De  Tocqueville's  judgment  has  been  endorsed  with  the  approval 
of  history.  "I  am  inclined  to  believe,"  said  he,  "that  this  prac- 
tice of  the  American  courts  is  at  once  most  favorable  to  liberty  and 
to  public  order.  If  the  judge  could  only  attack  the  legislator 
openly  and  directly,  he  would  sometimes  be  afraid  to  oppose 
him ;  and  at  other  times,  party  spirit  might  encourage  him  to 
brave  it  at  every  turn.  The  laws  would  consequently  be  at- 
tacked when  the  power  from  which  they  emanated  was  weak,  and 
obeyed  when  it  was  strong ;  —  that  is  to  say,  when  it  would  be 
useful  to  respect  them,  they  would  often  be  contested ;  and  when 
it  would  be  easy  to  convert  them  into  an  instrument  of  oppression, 
they  would  be  respected.  But  the  American  judge  is  brought 
into  the  political  arena  independently  of  his  own  will.  He  only 
judges  the  law  because  he  is  obliged  to  judge  a  case.  The  polit- 


n6       STATE  GOVERNMENT  IN  UNITED  STATES 

ical  question  which  he  is  called  upon  to  resolve  is  connected 
with  the  interests  of  the  parties,  and  he  cannot  refuse  to  decide 
it  without  a  denial  of  justice.  He  performs  his  functions  as  a 
citizen,  by  fulfilling  the  precise  duties  which  belong  to  his  pro- 
fession as  a  magistrate.  It  is  true  that,  upon  this  system,  the 
judicial  censorship  of  the  courts  of  justice  over  the  legislature 
cannot  extend  to  all  laws  indiscriminately,  inasmuch  as  some  of 
them  can  never  give  rise  to  the  precise  species  of  contest  which  is 
termed  a  lawsuit ;  and  even  when  such  a  contest  is  possible,  it 
may  happen  that  no  one  cares  to  bring  it  before  a  court  of  justice. 
The  Americans  have  often  felt  this  inconvenience ;  but  they  have 
left  the  remedy  incomplete,  lest  they  should  give  it  an  efficacy 
which  might  in  some  cases  prove  dangerous.  Within  these 
limits,  the  power  vested  in  the  American  courts  of  justice,  of 
pronouncing  a  statute  to  be  unconstitutional,  forms  one  of  the 
most  powerful  barriers  which  has  ever  been  devised  against  the 
tyranny  of  political  assemblies.1 

The  power  of  judicial  review  may  be  exercised  in  a  law  court  of 
any  grade,  and  by  either  judge  or  jury.  It  was  not  uncommon, 
indeed,  in  the  original  states  to  provide  that  the  jury  should 
determine  the  law  applicable  to  certain  classes  of  causes  as  well 
as  the  facts  thereof.  The  interests  of  litigants  were  safeguarded 
by  granting  to  the  losing  party  a  right  to  a  new  trial  before  an- 
other jury.  Thus  in  Georgia,  under  the  original  constitution  of 
1777,  the  jury  were  expressly  declared  to  be  judges  of  law  as  well 
as  of  fact,  but  if  any  of  the  jury  should  have  any  doubts  concern- 
ing points  of  law  they  were  authorized  to  apply  to  the  judges, 
"who  shall  each  of  them  in  rotation  give  their  opinion."  Dis- 
satisfied litigants  in  civil  causes  were  entitled  to  appeal  from  the 
verdict  and  demand  a  new  trial  in  the  same  court  before  a  special 
jury.  The  ordinary  jury  were  to  be  sworn  to  bring  in  a  verdict 
"  according  to  law,  and  the  opinion  they  entertain  of  the  evidence ; 
provided  it  be  not  repugnant  to  the  rules  and  regulations  con- 
tained in  this  constitution."  The  special  jury  were  to  be  sworn 
to  bring  in  a  similar  verdict,  "  provided  it  be  not  repugnant  to 
justice,  equity,  and  conscience,  and  the  rules  and  regulations 
contained  in  this  constitution,  of  which  they  shall  judge."  There 
could  be  no  clearer  expression  than  this,  both  of  the  power  of 

1  A.  de  Tocqueville,  Democracy  in  America  (Bowen's  ed.),  i,  pp.  129-130. 


THE  REDIVISION  OF  POWERS  117 

judicial  review,  and  of  the  duty  of  the  jury  to  exercise  that  power. 
In  this  instance  the  power  was  vested  exclusively  in  the  jury,  but 
it  is  clear  that  the  opinions  of  the  judges  were  intended  to  exert 
such  influence  as  the  character  of  the  judges  should  warrant. 

In  practice  the  enforcement  of  the  law  of  the  written  constitu- 
tion, in  cases  of  conflict  with  legislative  enactments,  has  fallen 
almost  exclusively  to  the  lot  of  the  judges.  It  was  inevitable 
that  judges,  and  not  juries,  should  in  the  long  run  prove  the  most 
effective  guardians  of  the  popular  rights,  so  far  as  these  rights 
were  expressly  guaranteed  in  written  constitutions.  The  judges 
were,  comparatively  at  least,  learned  in  the  law ;  the  juries  were 
not.  The  judges  were  selected,  professedly  at  least,  by  a  test  of 
fitness;  the  juries  were  selected  casually.  The  judges  were 
organized  into  a  centralized  hierarchy;  the  juries  were  unsys- 
tematically  organized.  The  judges  were  employed  in  the  public 
service  for  relatively  long  periods ;  the  juries  were  employed  only 
temporarily.  The  judges  were  free  to  weigh  the  force  of  prec- 
edent ;  the  juries  were  dominated  by  local  interests  and  ideas. 
The  judges  concentrated  their  attention  on  the  law ;  the  jury,  on 
the  facts.  Thus,  although  in  criminal  cases  juries  were  able  to 
refuse  to  convict  on  the  ground  that  the  statute  on  which  the 
prosecution  was  based  was  unconstitutional,  they  tended  to  rely 
upon  the  charge  of  the  judge,  and  the  latter  tended  to  assume  the 
sole  function  of  reviewing  the  constitutionality  of  such  legislative 
enactments.  Finally,  contrary  to  what  must  have  been  the 
original  popular  impression,  questions  concerning  the  constitu- 
tionality of  legislative  enactments  tended  to  arise  in  connection 
with  civil  rather  than  criminal  cases.  In  such  cases  the  im- 
portance of  jury  trials  is  less.  Moreover,  as  De  Tocqueville 
pointed  out  long  ago,  it  is  especially  in  civil  cases  that  "the  judge 
appears  as  a  disinterested  arbiter  between  the  conflicting  passions 
of  the  parties.  The  jurors  look  up  to  him  with  confidence,  and 
listen  to  him  with  respect,  for  in  this  instance  his  intellect  entirely 
governs  theirs.  .  .  .  His  influence  over  them  is  almost  un- 
limited." Thus,  "the  American  judge  is  constantly  surrounded 
by  men  who  are  accustomed  to  regard  his  intelligence  as  superior 
to  their  own  ;  and  after  having  exercised  his  power  in  the  decision 
of  causes,  he  continues  to  influence  the  habits  of  thought,  and 
even  the  characters,  of  those  who  acted  with  him  in  his  official 


n8       STATE  GOVERNMENT  IN  UNITED  STATES 

capacity.  The  jury,  then,  which  seems  to  restrict  the  rights  of 
the  judiciary,  does  in  reality  consolidate  its  power.  .  .  ." * 
In  short,  the  exercise  of  the  power  of  judicial  review  was 
preempted  by  the  judges,  so  far  as  was  necessary  for  the  enforce- 
ment of  the  formal  law  of  the  state  constitutions,  and  the  juries 
were  confined  to  the  exercise  of  the  power  only  in  cases  involving 
the  unwritten  law. 

.Whilst  the  power  of  judicial  veto  has  been  universally  recog- 
nized, the  Massachusetts  provision  for  advisory  judicial  opinions 
has  been  adopted  in  comparatively  few  states.  Five  other 
states,2  one  of  which  later  abandoned  the  practice,  have  provided 
for  obtaining  opinions  from  the  judges  of  the  highest  court  upon 
application  by  the  executive  or  legislature.  Two  states 3  have 
provided  for  obtaining  such  opinions  upon  application  by  the 
executive  alone.  In  Massachusetts  the  judges  are  to  give  their 
opinions  "on  important  questions  of  law  and  upon  solemn  occa- 
sions." In  some  of  the  other  states  the  obligation  to  give  advi- 
sory opinions  is  more  restricted,  and  even  in  Massachusetts  the 
judges  are  free  to  withhold  their  opinions  if  they  do  not  consider 
the  question  of  law  important  or  the  occasion  solemn.  Nor  are 
they  bound  to  adhere  to  their  opinion,  when  once  given,  if  the 
same  question  of  law  should  later  arise  in  the  course  of  litigation, 
and  further  reflection,  aided  by  the  arguments  of  counsel,  should 
prompt  a  different  decision.  In  short,  the  giving  of  such  opinions 
by  judges  is  generally  not  regarded  as  an  exercise  of  a  judicial 
function,  and  the  opinions  therefore  have  much  the  same  legal 
status  as  opinions  of  the  attorney-general  in  states  where  that 
officer  is  the  official  legal  adviser  of  the  administration.  If  they 
are  usually  received  with  greater  respect,  it  is  because  the  judges 
usually  enjoy  a  greater  reputation  for  legal  learning,  and  not 
because  of  their  official  position.  The  power  to  require  such 
advisory  opinions  may  be  useful  to  perplexed  legislatures  and 
executives,  but  it  does  not  deprive  the  courts  of  the  power  of 
judicial  veto  or  impair  the  exercise  thereof.4 

1De  Tocqueville,  Democracy  in  America  (Bowen's  ed.),  pp.  366-367. 
'New  Hampshire  (1784),  Maine  (1820),  Rhode  Island  (1842),  Missouri  (1865- 
1875),  and  Colorado  (1886). 

1  Florida  (1868)  and  South  Dakota  (1889). 
4  J.  B.  Thayer,  Legal  Essays,  no.  2. 


THE  REDIVISION  OF  POWERS  119 

CONSTITUTIONAL  LIMITATIONS  ON  LEGISLATIVE  POWERS 

The  scope  of  the  judicial  veto  is  determined  by  the  extent  of  the 
constitution  limitations  upon  the  powers  of  the  state  legislatures. 
In  the  beginning,  therefore,  it  was  confined  to  a  comparatively 
narrow  range  of  subjects,  since  the  powers  of  the  state  legislatures 
were  limited  only  by  the  general  reservations  of  rights  to  the 
people  in  the  original  declarations  of  rights.  With  the  gradual 
decline,  however,  in  the  prestige  of  the  state  legislatures  the  con- 
stitutional limitations  upon  their  powers  were  steadily  increased. 
In  other  words,  the  record  of  legislative  folly  and  corruption  in 
the  American  states  is  spread  upon  their  constitutions  in  the 
form  of  a  stream  of  amendments  designed  to  check  the  abuse  of 
legislative  powers.  The  power  to  pass  special  and  local  acts,  the 
power  to  tax  and  to  grant  tax-exemptions,  the  power  to  invest  the 
public  money,  loan  the  public  credit,  and  dispose  of  the  public 
resources  in  general,  all  were  subjected  to  a  series  of  restrictions 
ever  increasing  in  number  and  stringency. 

The  limitation  of  the  powers  of  the  legislatures,  though  never 
interrupted,  has  proceeded  with  conspicuous  vigor  at  three  clearly 
defined  periods,  each  inaugurated  by  especially  impressive  exam- 
ples of  legislative  incapacity  and  turpitude.  The  first  period  be- 
gan with  the  notorious  Yazoo  land  scandal  in  Georgia,  followed 
by  scandalous  practices  in  connection  with  the  grant  of  banking 
charters  in  several  of  the  states,  especially  in  New  York.  The 
revision  of  the  constitution  of  Georgia  in  1798  was  undertaken 
mainly  for  the  purpose  of  preventing  the  repetition  of  the  land 
scandal,  and  the  experience  of  Georgia  was  not  forgotten  when 
the  constitutions  of  the  new  states  of  the  old  Northwest  and 
Southwest  were  formed  early  in  the  nineteenth  century.  The 
period  culminated  in  the  reform  of  the  New  York  constitution  in 
1821.  The  second  period  began  with  the  panic  of  1837,  followed 
by  the  failure  of  the  systems  of  internal  improvements  under- 
taken by  many  of  the  states,  and  the  repudiation  of  several 
state  debts.  The  constitutions  of  Pennsylvania  in  1838  and  New 
Jersey  in  1844  were  revised  with  a  view  to  profiting  by  these 
unpleasant  experiences,  and  by  the  middle  of  the  century  the 
constitutions  of  most  of  the  states  had  been  revised  or  were  in 
process  of  revision.  The  third  period  began  with  the  outburst 


120        STATE   GOVERNMENT  IN  UNITED   STATES 

of  speculation  in  special  privileges  at  the  close  of  the  Civil  War, 
and  is  sufficiently  characterized  by  the  Credit  Mobilier  scandal 
in  Congress.  Beginning  in  1870,  the  constitutions  of  most  of  the 
leading  states  in  the  North  outside  of  New  England  were  revised, 
the  culmination  of  the  movement  being  reached  in  New  York  in 
1894.  At  the  same  time,  in  the  South,  the  period  following  the 
overthrow  of  negro  domination  was  likewise  characterized  by  the 
thorough  overhauling  of  the  constitutions  of  the  states,  with  a 
view  to  the  further  limitation  of  legislative  misconduct. 

The  great  extension  of  the  power  of  judicial  veto  during  the 
nineteenth  century  is  revealed  by  a  comparison  of  the  constitu- 
tional limitations  originally  imposed  on  the  Massachusetts 
legislature  with  those  imposed  on  the  legislature  of  New  York  in 
the  constitution  of  1894.  For  example,  the  power  to  tax  in 
Massachusetts  was  limited  only  by  the  provisions  that  personal 
and  property  taxes  should  be  "proportional  and  reasonable," 
that  duties  and  excises  should  be  "reasonable,"  and  that  for  the 
purpose  of  levying  poll  and  property  taxes  there  should  be  a 
revaluation  of  property  at  least  once  every  ten  years.  The  power 
to  appropriate  the  proceeds  of  taxation  was  limited  only  by  the 
provision  that  appropriations  should  be  for  a  public  purpose.1 
Finally,  the  legislature  was  forbidden  to  suspend  the  writ  of 
habeas  corpus,  except  upon  the  most  urgent  and  pressing  occasions 
and  for  not  more  than  twelve  months  at  a  time.2  Except  for  the 
limitations  set  forth  in  the  declaration  of  rights,  there  were  no 
other  limitations  upon  the  powers  of  the  legislature  in  the  Massa- 
chusetts constitution  of  1780.  The  power  to  dispose  of  the  public 
domain,  to  incur  debt,  to  charter  corporations  and  confer  special 
privileges  upon  them,  to  pass  private  and  local  acts,  to  engage  in 
public  enterprises,  and  to  pass  public  acts  of  every  description, 
all  were  conferred  in  one  general  grant  of  legislative  power.3 

In  New  York,  on  the  other  hand,  by  the  constitution  of  1894 
the  powers  of  the  legislature  were  subjected  to  important  limita- 
tions, and  legislative  procedure  was  subjected  to  stringent  regula- 
tion. No  private  or  local  bill  might  embrace  more  than  one  sub- 
ject, and  no  private  or  local  bill  might  be  passed  at  all  in  any  one 

1  Ch.  i,  sect,  i,  art.  iv;   ch.  ii,  sect,  i,  art.  ii. 

1  Ch.  vi,  art.  vii. 

1  Ch.  i,  sect,  i,  art.  iv. 


THE  REDIVISION  OF  POWERS  121 

of  a  long  list  of  specified  cases.  Among  these  were  the  following : 
changing  the  names  of  persons,  laying  out  roads,  locating  county 
seats,  providing  for  changes  of  venue  in  civil  or  criminal  cases, 
incorporating  villages,  selecting  grand  or  petty  jurors,  regulating 
the  rate  of  interest  on  money,  creating  allowances  for  public 
officers  during  their  terms  of  office,  gran  ting  the  right  to  lay  down 
railroad  tracks,  granting  to  any  private  corporation,  association, 
or  person  any  exclusive  privilege,  or  granting  to  any  person  or 
corporation  an  exemption  from  taxation  on  real  or  personal 
property.  The  assent  of  two-thirds  of  all  the  members  elected 
to  each  branch  of  the  legislature  was  required  for  any  appro- 
priation of  public  money  or  property  for  private  or  local  purposes ; 
and  the  assent  of  a  majority  of  a  special  quorum  consisting  of 
three-fifths  of  all  the  members  on  a  special  roll-call  to  be  recorded 
in  the  official  journal  was  required  for  the  adoption  of  any  act 
imposing  a  tax,  creating  a  debt,  or  making  an  appropriation.  The 
legislature  was  forbidden  to  loan  the  credit  of  the  state  to  any 
person  or  corporation,  or  to  contract  debts  in  excess  of  one  million 
dollars  for  the  purpose  of  meeting  deficits  in  the  revenues  except 
in  case  of  insurrection  or  invasion,  or  to  contract  any  debts  for 
any  other  purpose  except  with  the  express  approval  of  the  people. 
The  legislature  was  forbidden  to  dispose  of  the  state  forests,  or 
of  the  canals,  or  to  charge  tolls  thereon.  The  legislature  was 
forbidden  to  authorize  any  local  governing  body  to  loan  its  credit 
or  incur  indebtedness  except  for  its  own  purposes,  and  local 
debts  were  limited  to  ten  per  cent  of  the  assessed  valuation  of 
local  real  estate.  The  constitution  also  provided  for  the  classi- 
fication of  cities  in  three  classes  according  to  their  population  and 
prescribed  a  special  procedure  for  the  passage  of  special  laws 
relating  to  a  single  city  or  to  any  number  of  cities  less  than  the 
whole  number  in  a  class.  Such  a  law,  before  being  submitted 
to  the  governor  for  his  approval,  was  required  first  to  be  trans- 
mitted to  the  mayor  or  mayors  of  the  city  or  cities  concerned  and, 
if  not  approved  by  him  or  them,  to  be  repassed  by  the  legislature 
with  a  statement  in  the  title  for  the  information  of  the  governor 
that  the  bill  is  passed  without  the  acceptance  of  the  city  or  cities 
concerned.  The  apportionment  of  the  state  for  the  election  of 
members  of  the  legislature  was  provided  for  in  the  constitution 
itself,  and  the  power  of  the  legislature  to  redistrict  the  state  was 


122       STATE  GOVERNMENT  IN  UNITED  STATES 

carefully  defined.  The  manner  of  passing  bills  was  regulated  in 
order  to  secure  due  deliberation  and  adequate  publicity  at  each 
stage  of  the  procedure,  and  the  legislature  was  expressly  forbidden 
to  audit  any  private  claim  against  the  state,  or  to  authorize  the 
payment  of  any  account  not  previously  allowed  according  to 
law.  It  is  apparent  that  the  New  York  constitution  of  1894 
afforded  far  broader  scope  for  the  exercise  of  the  power  of  judicial 
review  than  the  Massachusetts  constitution  of  1780. 

At  the  present  time,  the  states  fall  into  three  groups  with 
respect  to  the  extent  to  which  legislative  powers  have  been  re- 
stricted by  the  insertion  of  express  limitations  in  the  state  con- 
stitutions. The  first  group  consists  mainly  of  states  in  New  Eng- 
land, of  which  Massachusetts  is  the  most  conspicuous  representa- 
tive, and  is  characterized  by  a  comparatively  slight  imposition 
of  constitutional  limitations  upon  legislative  powers.  The  second 
group  comprises  a  somewhat  larger  group  of  states,  mostly  in 
the  East  and  Middle  West,  of  which  New  York  is  the  most  con- 
spicuous representative,  and  is  characterized  by  a  more  extensive 
limitation  of  legislative  powers,  but  especially  by  a  more  thorough 
regulation  of  legislative  procedure.  The  third  group  comprises 
the  greater  number  of  states,  including  almost  all  the  states  of  the 
South  and  Far  West,  of  which  the  most  conspicuous  representatives 
are  California,  Louisiana,  and  Missouri,  and  is  characterized  not 
only  by  the  extensive  limitation  of  legislative  powers,  but  also 
by  the  regulation  of  the  frequency  and  duration  of  the  legislative 
sessions.  In  most  cases,  the  legislature  is  permitted  to  meet 
only  every  other  year,  unless  called  in  special  session  by  the  gov- 
ernor, but  in  Alabama  it  is  permitted  to  meet  only  every  fourth 
year.  In  most  cases,  the  sessions  are  limited  to  sixty  or  ninety 
days.  In  a  few  the  limit  is  lower.  In  Oregon  and  Wyoming  it  is 
placed  as  low  as  forty  days.  Apparently  the  people  of  those 
states  despaired  of  securing  any  effective  check  on  the  miscon- 
duct of  their  legislatures,  and,  accepting  the  view  that  legislatures 
are  a  necessary  evil,  sought  relief  by  confining  the  evil  within  the 
shortest  possible  limits  of  time.1 

1  For  an  illuminating  interpretation  of  the  constitutional  history  of  the  state 
legislatures,  see  Herbert  Croly,  Progressive  Democracy,  chs.  xi,  xii.  See  also  P.  S. 
Reinsch,  American  Legislatures  and  Legislative  Methods,  ch.  iv. 


THE  REDIVISION  OF  POWERS  123 

GROWTH  OF  POWER  OF  CONSTITUTIONAL  CONVENTION 

The  widespread  adoption  of  constitutional  limitations  upon 
legislative  powers,  apart  from  its  effect  upon  the  exercise  of  the 
power  of  judicial  review,  has  had  important  consequences  on  the 
general  operation  of  state  government. 

In  the  first  place,  it  has  greatly  altered  the  position  of  the  con- 
stitutional convention  in  the  governmental  system.  In  the  begin- 
ning the  constitutional  convention  was  an  extraordinary  legisla- 
tive body,  meeting  only  for  the  purpose  of  devising  or  revising  the 
fundamental  organization  of  the  government.  As  the  prestige  of 
the  ordinary  state  legislature  declined,  however,  that  of  the  con- 
stitutional convention  rose,  and  its  work  broadened  in  scope. 
From  the  moment  that  the  convention  came  to  be  regarded  as 
the  instrument  for  repairing  the  mistakes  or  misdeeds  of  the 
ordinary  legislature  its  future  became  full  of  promise.  At  first 
it  generally  confined  its  correctional  activities  to  the  single  task 
of  imposing  upon  the  legislatures  constitutional  limitations 
designed  to  prevent  the  abuse  of  their  powers.  Then  it  began  to 
issue  orders  to  the  legislatures,  enjoining  upon  them  the  per- 
formance of  their  duties.  Thus,  the  Georgia  constitutional  con- 
vention of  1798  commanded  the  Georgia  legislature  to  repeal 
certain  acts  relating  to  the  disposal  of  the  public  lands,  and  to 
enact  certain  other  measures  in  their  stead.  It  was  quickly 
perceived,  however,  that  this  mode  of  procedure  was  ineffective, 
since  there  was  no  means  of  compelling  a  refractory  legislature 
to  comply  with  the  orders  of  a  convention.  The  difficulty  was  the 
same  as  that  which  had  frustrated  the  efforts  of  the  council  of 
censors  in  Pennsylvania.  The  constitutional  conventions,  there- 
fore, quickly  adopted  the  practice  of  executing  their  own  com- 
mands by  the  simple  device  of  inserting  them  in  the  fundamental 
law,  and  thus  taking  the  matters  to  which  they  referred  out  of  the 
hands  of  the  legislatures.  In  other  words,  the  conventions 
utilized  the  forms  of  fundamental  law-making  for  the  purpose  of 
enacting  ordinary  statutory  law,  and  thereby  acquired  for  them- 
selves the  powers  of  an  ordinary  legislative  body,  subject  in 
their  exercise  to  the  approval  of  the  electorate  in  those  states 
where  the  approval  of  the  electorate  was  required  for  the  revision 
or  amendment  of  the  constitution.  In  short,  the  constitutional 


124       STATE   GOVERNMENT  IN  UNITED  STATES 

convention  became  transformed  into  an  ordinary  legislative  body, 
meeting  more  or  less  periodically  for  the  purpose  of  reviewing  the 
conduct  of  the  regular  legislature  and  of  enacting,  with  the  ap- 
proval of  the  people,  such  legislation  as  the  occasion  should 
appear  to  demand. 

One  indication  of  the  legislative  activity  of  the  constitutional 
conventions  is  the  increase  in  the  length  of  the  state  constitutions. 
The  original  constitution  of  Virginia  occupies  six  and  one-half 
printed  pages  in  Thorpe's  edition  of  the  state  constitutions.  The 
Massachusetts  constitution  of  1780,  the  longest  of  the  original 
constitutions,  occupies  twenty- three  printed  pages.  The  pro- 
posed constitution  and  other  acts  of  the  Oklahoma  constitutional 
convention  of  1907  occupy  seventy-four  pages  in  the  same  com- 
pilation. The  original  Virginia  constitution  contains  no  ordinary 
legislation.  The  original  Massachusetts  constitution  contains 
none,  unless  an  article  confirming  the  privileges  of  Harvard 
College  be  deemed  an  ordinary  statutory  enactment.  The  con- 
stitution of  Oklahoma  contains  eleven  pages  of  legislation  relating 
to  the  subject  of  corporations  alone,  besides  much  more  ordinary 
legislative  matter  relating  to  homesteads  and  exemptions,  banks 
and  banking,  insurance,  the  employment  of  children,  and  educa- 
tion. It  forbids  plural  marriages,  fixes  the  maximum  rate  of 
interest,  abolishes  the  so-called  fellow-servant  doctrine  and 
regulates  the  use  of  the  contributory-negligence  and  assumption- 
of-risk  doctrines  as  defenses  in  certain  suits  for  damages,  estab- 
lishes the  eight-hour  day  on  public  works  and  in  coal  mines,  and 
determines  the  test  for  the  purity  of  kerosene  oil.  The  conven- 
tion also  provided  for  the  separate  submission  to  the  electorate 
of  a  proposal  to  prohibit  the  sale  of  intoxicating  liquors.  The 
acts  of  the  Oklahoma  convention  of  1907  are  merely  the  most 
striking  evidence  of  the  growing  tendency  throughout  the  states, 
especially  in  the  South  and  West,  to  transform  the  constitutional 
convention  into  an  ordinary  legislative  body.  The  fundamentals 
of  state  government  are  predetermined  outside  of  the  conven- 
tions by  public  opinion,  and  the  responsibility  for  alterations  in 
the  actual  frames  of  government  has  been  in  the  main  shifted  to 
the  electorates. 

The  result  of  these  developments  was  to  precipitate  a  struggle 
for  supremacy  in  some  states  between  the  legislature  and  the 


THE  REDIVISION  OF  POWERS  125 

constitutional  convention.  In  the  course  of  this  struggle  three 
different  theories  concerning  the  constitutional  position  of  the 
constitutional  convention  have  been  developed.  According  to 
the  first,  the  constitutional  convention  is  a  subordinate  legislative 
body,  subject  to  control  by  the  regular  legislature  of  the  state. 
According  to  the  second,  it  is  a  sovereign  body,  possessing  for  the 
time  being  all  the  powers  of  the  sovereign  people.  According  to 
the  third,  it  is  a  coordinate  legislative  body,  subject  like  the  regu- 
lar legislature  to  the  constitution  of  the  state,  but  not  subject  to 
the  authority  of  any  other  legislative  body. 

The  conflicting  nature  of  these  three  theories  may  be  illustrated 
as  follows.  The  people,  let  us  say,  by  a  majority  of  the  votes  of 
those  voting  thereon  approve  an  act  of  the  legislature  providing 
for  the  election  of  a  constitutional  convention.  Whether  the 
legislature  is  expressly  authorized  by  the  constitution  to  submit 
such  an  act  to  the  people  is,  as  has  already  been  shown,  immate- 
rial, except  in  Rhode  Island.  The  legislature  then  provides  for 
the  election  of  the  delegates  to  the  convention,  and  in  the  same 
act  imposes  certain  limitations  upon  the  powers  of  the  conven- 
tion, when  it  shall  meet.  For  example,  it  may  enact  that  the 
convention  shall  not  propose  amendments  to  certain  sections  of 
the  existing  constitution,  or  shall  submit  amendments  to  certain 
sections,  if  at  all,  separately  to  the  people,  or  shall  submit  them 
at  a  certain  time  and  in  the  manner  provided  by  the  law  of  the 
state  governing  elections.  The  advocate  of  the  supremacy  of 
the  ordinary  legislature  would  assert  that  the  convention  would 
have  no  right  to  disobey  any  of  these  injunctions.  The  advocate 
of  the  supremacy  of  the  convention  would  assert  that  it  might 
disobey  any  or  all  of  them.  The  advocate  of  the  coordinate 
authority  of  legislature  and  convention  would  assert  that  the 
convention  might  disobey  some  of  these  injunctions  but  must 
obey  others. 

Very  few  of  the  state  constitutions  define  the  status  of  the 
constitutional  convention.  In  all  the  states,  until  comparatively 
recently,  and  at  the  present  time  in  almost  all,  the  powers  of  the 
constitutional  convention  are  to  be  discovered  only  by  examination 
of  the  unwritten  law  of  the  constitution.  The  two  fundamental 
principles  of  the  unwritten  law  are  the  sovereignty  of  the  people 
and  the  reign  of  law.  Whatever  powers  a  constitutional  conven- 


126        STATE  GOVERNMENT  IN  UNITED  STATES 

tion  may  possess,  therefore,  if  not  defined  in  the  written  constitu- 
tion, must  be  obtained  by  a  delegation  of  authority  by  the  people, 
and  the  delegation  of  this  authority  must  be  accomplished  by 
due  process  of  law. 

There  are  two  distinct  cases :  first,  where  the  call  for  the  con- 
vention is  not  submitted  to  the  people  for  an  expression  of  their 
consent ;  secondly,  where  it  is  so  submitted.  In  the  former  case, 
such  power  as  the  convention  may  possess  is  apparently  dele- 
gated to  it  by  the  legislature  on  its  own  authority.  It  is  an  ac- 
cepted principle  of  the  unwritten  constitution,  however,  that  legis- 
lative power  may  not  be  delegated  by  the  body  on  which  the 
people  have  conferred  it.  The  calling  of  a  convention,  there- 
fore, without  a  vote  of  the  people  must  be  regarded  as  an  abdica- 
.tion  of  power  by  the  regular  legislature  in  favor  of  an  extra- 
constitutional  body.  Such  a  body  is  a  revolutionary  rather  than 
a  constitutional  convention,  and  the  extent  of  its  powers  would 
apparently  be  determined  by  itself,  subject  only  to  the  limits 
which  the  people  in  their  capacity  of  ultimate  sovereign  may 
be  able  to  impose.  It  cannot  be  denied  that  many  of  the 
conventions  which  have  been  held  in  the  states  have  been 
of  this  character,  and  the  propriety  of  such  a  convention 
has  been  sustained  by  the  supreme  court  of  Mississippi  in  a 
case  involving  the  power  of  the  convention  of  that  state  held 
in  1890  practically  to  disfranchise  the  negro  voters  without 
their  consent.1 

The  more  general  case  at  the  present  time  is  that  in  which  the 
call  of  the  convention  has  been  expressly  sanctioned  by  a  vote  of 
the  people.  In  such  a  case,  the  powers  of  the  convention  must 
be  derived  from  the  terms  of  the  vote  adopted  by  the  people,  and 
the  terms  of  that  vote  must  be  formulated  in  the  first  instance 
by  the  legislature.  So  far,  there  can  hardly  be  any  disagreement 
between  the  advocates  of  the  several  theories  set  forth  above. 
The  advocates  of  legislative  supremacy,  however,  proceed  further. 
They  argue  that,  since  the  voice  of  the  people  is  expressed  through 
the  legislature,  the  adoption  of  a  vote  by  the  people  authorizing 
the  legislature  to  call  a  convention  serves  also  to  authorize  the 
legislature  to  regulate  the  powers  and  procedure  of  the  convention 
in  any  manner  that  the  legislature  may  deem  necessary  and  proper. 

1  See  Sproule  v.  Fredericks,  69  Miss.  898  (1892). 


THE  REDIVISION  OF  POWERS  127 

Hence,  although  whatever  powers  the  convention  possesses  must 
be  derived  from  the  people,  the  extent  of  those  powers  may  be 
defined  by  the  legislature  without  any  further  express  approval 
on  the  part  of  the  people  than  that  indicated  by  their  sanction  of 
the  call.  The  advocates  of  the  supremacy  of  the  convention,  on 
the  other  hand,  argue  that  if  the  vote  of  the  people  sanctions  the 
call  of  a  convention,  it  is  a  constitutional  convention  that  must  be 
called,  a  body  possessing  for  the  time  all  the  sovereign  powers  of 
the  people  themselves,  and  not  some  inferior  body  subject  to  the 
control  of  the  ordinary  legislature  of  the  state.  The  legislature 
is  not  authorized  to  use  its  discretion  with  respect  to  the  extent 
of  power  that  shall  be  conferred  on  the  people,  assembled  by  their 
representatives  in  convention,  but  simply  to  issue  the  call  for 
the  election  of  these  representatives. 

The  advocate  of  the  coordinate  authority  of  convention  and 
legislature  reasons  in  a  different  manner.  Proceeding  from  the 
accepted  rule  that  whatever  powers  the  convention  may  possess 
must  be  derived  from  the  people,  he  argues  that  the  terms  of  the 
vote  actually  adopted  by  the  people  are  the  evidence  of  the  extent 
of  these  powers,  and  that  any  restrictions  which  the  legislature 
may  seek  to  impose  without  the  express  approval  of  the  people 
are  unauthorized  and  hence  invalid.  The  legislature  may  pro- 
pose to  the  people  whatever  limitations  it  pleases,  but  these 
limitations  must  be  accepted  by  the  people  in  order  to  take  effect 
upon  the  convention.  The  convention  should  be  free  to  disregard 
any  special  limitations  which  the  legislature  may  seek  to  impose 
subsequently  to  the  vote  by  the  people  sanctioning  the  call  of  the 
convention,  but  it  should  not  be  free  to  disregard  the  general  law 
of  the  state,  whether  expressed  in  the  constitution  or  in  the  acts 
of  the  legislature.  A  convention,  for  example,  may  disregard  a 
legislative  act,  not  submitted  to  the  people  for  their  approval, 
which  seeks  to  limit  the  duration  of  the  deliberations  of  the  con- 
vention, but  it  may  not  disregard  a  legislative  act  providing  that 
appropriations  for  the  support  of  the  convention  shall  lapse  after 
a  limited  period.  In  other  words,  the  executive  or  judiciary  of  the 
state  would  not  be  justified  in  turning  a  convention  out  of  doors 
after  the  period  set  by  the  legislature  for  the  termination  of  its 
deliberations  had  expired,  but  they  would  be  justified  in  with- 
holding further  funds.  The  convention  might  continue  in  session, 


128       STATE  GOVERNMENT  IN  UNITED   STATES 

but  it  would  have  to  look  to  the  people  for  indemnification  for 
any  further  expenses  that  might  be  incurred. 

No  one  of  these  theories  with  respect  to  the  position  of  the  con- 
stitutional convention  has  been  universally  accepted  in  the  states. 
In  several  of  the  states  no  one  has  even  been  uniformly  followed. 
The  theory  of  legislative  supremacy  has  been  vigorously  asserted 
by  the  supreme  court  of  Pennsylvania,  for  example,  but  it  was  not 
accepted  by  the  last  convention  of  that  state.  The  people  adopted 
the  constitution  which  the  convention  proposed  to  them,  thus 
exculpating  the  members  of  the  convention  for  their  disregard  of 
the  restrictions  which  the  legislature  sought  with  the  approval 
of  the  court  to  impose  upon  them.1  The  theory  of  the  supremacy 
of  the  convention  seems  to  have  become  the  established  rule  in 
Virginia.  On  three  occasions,  in  1830,  1850,  and  1869,  the  con- 
vention extended  the  right  to  vote  to  classes  of  the  population 
which  had  not  previously  possessed  it,  and  then  submitted  their 
work  to  the  new  electorate  for  approval.  On  a  fourth  occasion, 
in  1902,  the  convention  deprived  an  important  class  of  the  popula- 
tion of  their  right  to  vote  and  then  declined  to  submit  their  work 
to  the  judgment  of  the  electorate,  either  old  or  new.2  When  a 
convention  in  Illinois,  however,  tried  in  1862  to  usurp  ordinary 
legislative  powers,  the  political  situation  rendered  it  inexpedient 
to  attempt  to  dispense  with  the  formal  approval  of  the  electorate, 
and  the  work  of  the  convention  was  repudiated  by  the  people 
of  the  state.3  Whilst  no  one  theory  can  be  said  to  have  become 
generally  accepted,  the  view  seems  to  be  tending  to  prevail,  at 
least  in  those  states  where  popular  approval  is  required  before  a 
convention  may  be  called,  that  the  convention  and  legislature 
should  be  coordinate  legislative  bodies,  each  independent  of  the 
other  in  its  proper  sphere  and  both  alike  subject  to  the  supremacy 
of  the  constitution.4 

1  See  Wells  v.  Bain,  75  Pa.  St.  39  (1874),  and  Wood's  Appeal,  75  Pa.  St.  59  (1874). 
3  F.  A.  Magruder,  Recent  Administration  in  Virginia  (Johns  Hopkins  University 
Studies,  xxx,  i,  pp.  78-94),  p.  89. 

3  O.  M.  Dickerson,  The  Illinois  Constitutional  Convention  of  1862  (University  of 
Illinois  Studies). 

4  See  Report  of  Committee  on  Judiciary,  Elihu  Root,  chairman,  New  York  Con- 
stitutional Convention,  1894,  Documents  and  Reports,  pp.  70-100. 


THE   REDIVISION  OF  POWERS  129 

GROWTH  OF  POWER  OF  ELECTORATE 

Secondly,  the  widespread  adoption  of  constitutional  limitations 
upon  legislative  powers  has  greatly  altered  the  position  of  the 
electorate  in  the  governmental  system.  The  least  conspicuous 
feature  of  the  system  of  checks  and  balances  originally  estab- 
lished in  Massachusetts  was  the  direct  popular  veto  of  legislative 
measures.  Since  in  most  states  the  work  of  constitutional  con- 
ventions may  become  effective  only  with  the  express  consent  of 
the  people,  the  process  of  imposing  restrictions  on  the  legislatures 
involved  an  increase  in  the  activities  of  the  electorates.  The 
feeling  that  the  people  were  directly  participating  in  the  making 
of  laws  was  intensified  when  constitutional  conventions  began  to 
insert  substantive  law  of  an  ordinary  statutory  nature  in  the 
constitutions.  Many  conventions  still  further  intensified  this 
feeling  by  providing  for  separate  submission  of  measures  of  an 
ordinary  statutory  character,  thus  making  the  electors  conscious 
of  the  distinction  between  the  statutory  law  and  constitutional 
law  in  the  strict  sense  of  the  term.  Finally  many  legislatures 
themselves  have  been  compelled  to  enact  much  legislation  in  the 
guise  of  constitutional  amendments,  which,  but  for  the  restric- 
tions imposed  upon  them  by  the  conventions,  would  have  been 
disposed  of  without  reference  to  the  people.  The  result  has  been 
greatly  to  increase  the  importance  of  the  state  electorates  as 
legislative  bodies. 

The  decline  in  the  powers  of  the  legislatures  was  the  result  of 
the  decline  of  legislative  prestige.  As  the  people's  respect  for 
the  ability  and  integrity  of  their  representative  bodies  dwindled, 
their  reliance  upon  themselves  was  necessarily  bound  to  grow, 
unless  they  were  to  confess  popular  government  a  failure.  Thus 
direct  action  by  the  electorate  came  to  the  support  of  a  declining 
system  of  representative  government. 

The  rise  of  the  electorate  as  an  instrument  for  direct  legislative 
action  has  been  marked  by  the  development  of  two  distinct  forms 
of  activity.  One  has  culminated  in  what  is  called  municipal 
home  rule ;  the  other,  in  direct  legislation  by  the  people.  The 
former  has  rendered  the  electorates  of  the  municipalities  in  those 
states  where  it  has  been  adopted  independent  of  the  authority 
of  the  legislature  in  local  concerns ;  the  latter  has  rendered  the 
K 


I3o       STATE  GOVERNMENT  IN  UNITED  STATES 

electorates  of  certain  states  as  a  whole  independent  of  the  state 
legislatures.  Both  systems  alike  operate  as  limitations  upon 
legislative  power.  The  referendum  alone,  whether  local  or  state- 
wide, makes  possible  the  popular  veto  of  legislative  enactments. 
Municipal  home  rule  and  the  procedure  for  direct  legislation  by 
the  people,  when  complete,  enable  the  electorate  not  only  to  veto 
legislation  that  is  not  desired  but  also  to  take  the  initiative  in  the 
enactment  of  legislation  without  awaiting  the  pleasure  of  the 
ordinary  legislature  of  the  state.  The  referendum  is  negative  in 
its  operation ;  it  facilitates  the  correction  of  legislative  errors  of 
commission.  The  initiative  is  positive ;  it  facilitates  the  correc- 
tion of  errors  of  omission. 

MUNICIPAL  HOME  RULE 

The  development  of  home  rule  has  been  a  gradual  process. 
In  the  form  of  the  local  popular  veto  it  seems  to  have  been  intro- 
duced first  in  New  England.  There  the  traditional  system  of 
local  government  was  characterized  by  the  assemblage  of  all 
the  voters  at  least  once  a  year  in  town  meeting  for  the  election  of 
local  officers  and  the  ordering  of  town  affairs.  When  in  1820  the 
Massachusetts  constitutional  convention  proposed  an  amendment 
to  define  the  legislature's  power  to  incorporate  cities,  it  readily 
provided  that  the  legislature  should  not  grant  a  municipal  charter 
to  any  town  unless  a  majority  of  the  townsmen  voting  in  town 
meeting  should  approve  the  change  from  town  to  city.  Thus  the 
power  of  the  legislature  to  incorporate  cities  was  limited  by  the 
obligation  to  obtain  the  consent  of  the  people  of  the  proposed  city. 
Thereafter  the  local  referendum  was  gradually  introduced  in  all 
parts  of  the  country  in  connection  with  legislation  affecting  the 
forms,  organization,  powers  and  procedure  of  local  government. 
To-day,  by  the  constitutions  of  many  states,  the  legislatures  are 
forbidden  to  enact  measures  to  incorporate  villages  and  cities, 
to  define  the  boundaries  of  counties  or  divide  them  into  townships, 
to  locate  county  seats  or  change  county  names  or  to  alter  the 
forms  of  local  government  without  the  consent  of  the  people 
of  the  localities  affected. 

Once  the  local  referendum  had  been  established  by  constitu- 
tional conventions  as  an  instrument  for  checking  the  operations 
of  the  legislatures,  it  was  an  easy  step  for  the  legislatures  them- 


THE  REDIVISION  OF  POWERS  131 

selves  to  extend  the  use  of  the  local  referendum  as  an  instrument 
for  checking  the  operations  of  the  local  governments.  Thus 
statutes  were  enacted  in  many  states  forbidding  local  governing 
authorities  to  lend  the  public  credit  for  the  promotion  of  private 
enterprises  of  a  commercial  or  industrial  nature,  or  forbidding 
the  expenditure  of  public  money  directly  by  the  local  govern- 
ment itself  for  local  improvements  without  the  express  consent 
of  the  people.  A  further  step  was  taken  when  the  legislatures 
adopted  the  practice  of  submitting  to  the  decision  of  the  voters 
certain  questions  which  the  legislatures  could  not  ignore  and  could 
not  themselves  decide  without  embarrassment.  Thus,  the  ques- 
tion of  the  control  of  the  traffic  in  intoxicating  liquors  was  dis- 
posed of  in  many  states  by  the  enactment  of  laws,  providing  for 
the  decision  between  a  policy  of  license  or  no-license  directly  by 
the  voters  in  each  locality.  Local  option,  as  this  procedure  was 
called,  means  in  New  England  annual  referenda  in  each  city  and 
town,  in  other  parts  of  the  country  referenda  in  the  county  or 
in  subdivisions  of  the  county.  Similar  procedure  has  been  estab- 
lished in  some  states  for  the  decision  of  questions  such  as  the 
establishment  of  municipal  public  services,  especially  waterworks 
and  lighting  plants,  and  the  granting  of  franchises  to  public 
service  corporations. 

The  most  important  development  of  the  local  referendum  has 
been  in  connection  with  the  adoption  and  revision  of  municipal 
charters.  In  Massachusetts  the  legislature  early  established  the 
practice  of  submitting  to  the  people  of  the  towns  and  cities  for 
their  acceptance  or  rejection  all  proposals  for  the  adoption  or 
revision  of  charters.  In  other  states  this  practice  was  made 
mandatory  upon  the  legislature  by  the  constitution.  The  final 
step  in  the  development  of  municipal  autonomy  was  taken  in 
Missouri  in  1875.  The  constitution  adopted  in  that  year  pro- 
vided that  on  petition  of  a  certain  number  of  citizens  in  any  city 
an  election  should  be  held  for  the  choice  of  a  board  of  freeholders 
whose  duty  it  should  be  to  prepare  a  charter  and  submit  it  to  the 
people.  If  approved  by  them,  it  should  go  into  effect  without 
any  special  action  on  the  part  of  the  state  legislature,  nor  should 
the  state  legislature  be  able  to  alter  it  in  any  manner  except  by 
general  law  applying  to  the  whole  state.  Thus  an  effective  power 
of  local  popular  initiative  was  added  to  the  local  referendum. 


STATE  GOVERNMENT  IN  UNITED  STATES 

This  or  similar  procedure  for  the  establishment  of  municipal 
home  rule  has  now  been  adopted  in  a  dozen  states.  In  some 
states  home  rule  charters  must  be  submitted  to  the  governor  of 
the  state  for  his  approval  in  order  to  ensure  the  elimination  of 
provisions  in  conflict  with  the  general  laws  of  the  state,  but  in 
most  states  the  adjustment  of  cases  of  conflict  between  home  rule 
charters  and  the  general  laws  of  the  state  is  left  to  the  courts. 
The  last  step  in  the  development  of  local  home  rule  has  been  taken 
in  California,  where  the  application  of  the  procedure  for  the 
adoption  of  home  rule  charters  has  been  extended  to  the  county. 

THE  STATE-WIDE  REFERENDUM 

The  state-wide,  like  the  local,  referendum  was  first  employed 
in  Massachusetts,  and  was  subsequently  copied  and  extended  by 
other  states.  At  the  present  time  it  may  be  employed  in  five 
different  cases :  (i)  in  connection  with  the  revision  and  amend- 
ment of  state  constitutions,  as  has  already  been  described; 
(2)  in  connection  with  ordinary  legislation,  which  is  submitted 
by  a  state  legislature  to  the  electorate  for  approval  or  disapproval 
either  by  reason  of  a  constitutional  limitation  or  directly  upon  its 
own  motion;  (3)  in  connection  with  ordinary  legislation  duly 
enacted  by  the  legislature  and  referred  to  the  electorate  upon 
petition  by  a  certain  fraction  thereof ;  (4)  in  connection  with  pro- 
posals for  ordinary  legislation  which  the  legislature  has  neglected 
to  enact,  submitted  directly  to  the  electorate  upon  petition  of  a 
certain  fraction  thereof;  and  (5)  in  connection  with  proposed 
constitutional  amendments  which  may  be  submitted  directly  to 
the  electorate  upon  petition  of  a  certain  fraction  thereof  with- 
out the  intervention  of  the  legislature.  The  third  case  is  that 
which  is  often  described  as  the  direct  popular  referendum.  The 
fourth  is  often  described  as  the  direct  popular  or  statutory  initia- 
tive, and  the  fifth  as  the  constitutional  initiative.  The  third  and 
fourth  together  or  the  third,  fourth,  and  fifth  together  constitute 
the  procedure  often  collectively  described  as  direct  legislation  by 
the  people.  The  second  case,  which  may  for  convenience  be 
described  as  the  legislative  referendum,  is  that  which  developed 
next  after  the  development  of  the  referendum  upon  proposed 
constitutional  revisions  and  amendments. 


THE  REDIVISION  OF  POWERS  133 

Legislative  referenda  are  of  two  kinds :  those  expressly  author- 
ized by  the  constitution,  and  those  not  expressly  authorized. 
One  of  the  earliest  instances  of  the  legislative  referendum  ex- 
pressly authorized  by  the  constitution  is  found  in  connection  with 
choice  of  a  site  for  a  state  capital.  Texas  was  the  first  state  to 
make  provision  for  the  submission  by  the  legislature  to  the  people 
of  a  measure  to  indicate  their  preference  respecting  the  location 
of  the  permanent  seat  of  government.  Oregon,  Kansas,  and 
Colorado,  and  several  other  states  more  recently,  did  the  same 
when  they  were  admitted  to  the  Union.  The  constitutions  of  at 
least  a  dozen  states  now  provide  that  the  legislature  shall  enact 
no  law  providing  for  the  relocation  of  the  capital  without  the 
approval  of  the  people.  A  still  earlier  instance  of  the  legislative 
referendum  was  its  use  in  order  to  control  more  effectively  the 
legislative  power  to  raise  and  expend  the  public  revenues.  In 
1842  a  provision  was  inserted  in  the  new  constitution  of  Rhode 
Island  forbidding  the  legislature  to  contract  any  indebtedness 
beyond  $50,00x5,  except  in  tune  of  war  or  in  case  of  invasion  or 
domestic  insurrection,  without  the  approval  of  the  people. 
Similar  limitations  upon  the  power  of  the  legislatures  to  contract 
debts  have  since  been  adopted,  subject  to  various  exceptions 
respecting  the  amount  of  debt,  in  at  least  a  dozen  states.  The 
amount  of  indebtedness  for  ordinary  public  purposes  which  may 
be  contracted  without  the  necessity  of  ratification  by  the  people 
varies  from  $50,000  in  Rhode  Island  to  $1,000,000  in  New  York, 
but  the  principle  is  the  same.  The  legislature  must  keep  the 
state  expenditures  within  its  revenues,  or  secure  authority  for  the 
contraction  of  debt  directly  from  the  people.  This  limitation 
serves  also  as  a  limitation  upon  the  power  of  the  legislatures  to 
engage  in  expensive  works  of  public  improvement  without  the 
express  approval  of  the  people,  although  in  a  few  states  the  legisla- 
ture may  not  even  adopt  a  project  of  public  improvement,  much 
less  finance  it,  without  the  express  approval  of  the  people.  In  a 
few  states  the  legislatures  are  forbidden  to  dispose  of  certain 
public  properties  without  the  express  approval  of  the  people,  and 
in  a  few  others  they  are  forbidden  even  to  increase  the  rate  of 
taxation  upon  property  beyond  a  maximum  fixed  in  the  constitu- 
tion without  the  express  approval  of  the  people.  The  state-wide 
legislative  referendum  has  also  been  employed  in  several  states 


134       STATE  GOVERNMENT  IN  UNITED   STATES 

to  prevent  the  abuse  of  the  power  to  create  banking  corporations. 
Beginning  in  Iowa  in  1846,  the  constitutions  of  seven  states,  all 
located  in  the  Middle  West,  prohibit  the  legislature  from  enacting 
without  the  express  consent  of  the  people  any  law  for  the  chartering 
of  banks.  Thus,  through  the  operation  of  the  legislative  referen- 
dum in  certain  classes  of  cases  expressly  authorized  by  the  state 
constitution,  both  the  legislatures  and  the  people  have  been 
familiarized  with  the  use  of  the  popular  veto  in  connection  with 
the  adoption  of  ordinary  statutes  as  well  as  of  constitutional 
amendments  and  revisions. 

It  was  an  easy  step  for  state  legislatures  to  resort  to  the  state- 
wide referendum  upon  statutes  in  cases  where  they  were  not 
authorized  to  do  so  by  the  state  constitution.  The  first  instance 
seems  to  have  occurred  in  New  York  in  1849.  The  legislature  was 
convinced  that  the  people  wished  to  establish  a  compulsory 
system  of  public  education,  but  was  uncertain  as  to  the  willing- 
ness of  the  people  to  pay  the  cost.  The  legislators  therefore 
sought  to  evade  their  responsibility  for  action  in  the  matter  by 
passing  a  measure  for  free  compulsory  education  with  the  proviso 
that  it  should  not  take  effect  unless  approved  by  a  majority  of  the 
voters.  The  law,  however,  was  declared  unconstitutional  by  the 
supreme  court  of  the  state.1  The  court  took  the  view  that  legisla- 
tive power  conferred  upon  the  legislature  by  the  constitution  was 
to  be  used,  if  at  all,  by  the  legislature  itself,  and  might  not  be 
delegated  by  the  legislature  to  others,  not  even  to  the  state 
electorate.  Had  the  people  wished  to  reserve  to  themselves  the 
power  to  legislate,  presumably  they  would  have  done  so.  Since 
they  had  not  done  so,  the  only  reasonable  inference,  the  court 
believed,  was  that  they  had  commanded  their  servant,  the  legis- 
lature, to  exercise  that  power  for  them.  To  attempt  to  shift 
responsibility  back  upon  the  people  for  the  adoption  of  legisla- 
tion was  therefore  a  breach  of  trust  on  the  part  of  the  legislature. 

Shortly  afterwards  the  policy  of  prohibiting  the  sale  of  intoxi- 
cating liquors,  or  so-called  Maine  idea,  swept  the  northern  and 
western  states,  to  the  great  embarrassment  of  the  state  legisla- 
tures. In  several  states  they  would  have  preferred  to  refer  the 
whole  matter  to  the  people,  but  the  decision  in  the  New  York 
case  stood  in  the  way  of  such  evasion  of  their  responsibility.  In 

1  Barto  vs.  Himrod,  4  Seld.  (N.  Y.),  483.    See  also  State  vs.  Hayes,  61  N.  H.,  264. 


THE  REDIVISION  OF  POWERS  135 

Michigan  an  ingenious  device  was  adopted  to  gain  the  same  end. 
A  state-wide  prohibitory  law  was  enacted  in  1853  to  go  into  effect 
either  on  December  i,  1853,  or  on  March  i,  1870,  and  the  decision 
between  the  two  dates  was  referred  to  the  electorate.  In  either 
event  the  law  was  to  go  into  effect,  unless  sooner  repealed,  and 
hence  there  was  no  delegation  of  legislative  power  by  the  legisla- 
ture, but  simply  a  direction  to  the  executive  to  enforce  the  act 
from  a  certain  date  in  the  event  of  a  certain  contingency,  namely 
a  vote  in  favor  of  that  date  by  the  electorate.  This  law  was 
declared  constitutional  by  a  divided  court,  but  in  general  legisla- 
tive attempts  to  shift  the  responsibility  for  legislation  to  the 
electorate,  except  in  those  cases  where  such  shifting  is  expressly 
authorized  by  the  constitution,  have  found  little  favor  in  the 
courts.1 

The  use  of  the  referendum  on  proposed  legislation  of  any  sort 
at  the  discretion  of  the  legislature  has  been  expressly  authorized 
by  constitutional  amendment  in  a  few  states,  notably  in  Michigan 
in  1908  and  in  Massachusetts  in  1913.  In  a  larger  number  of 
states,  where  the  process  of  constitutional  amendment  is  short 
and  direct,  the  legislature  can  virtually  refer  any  proposed  legis- 
lation to  the  electorate  by  referring  it  under  the  guise  of  a  proposed 
amendment  to  the  constitution.  Occasionally  a  referendum  has 
been  ordered  by  a  state  legislature  for  advisory  purposes  only. 
In  such  cases  the  vote  has  no  legal  force  and  serves  simply  as  an 
expression  of  public  opinion.  In  one  state,  Illinois,  the  legisla- 
ture provided  in  1902  that  an  advisory  vote  may  be  had  on  any 
question  submitted  by  popular  petition.  This  advisory  initia- 
tive, however,  does  not  actually  increase  the  constitutional  power 
of  the  electorate.  It  merely  serves  as  an  additional  means  for 
the  expression  of  public  opinion. 

DIRECT  LEGISLATION  BY  THE  PEOPLE 

The  foundation  for  the  direct  popular  referendum  and  initiative 
may  be  found  in  the  political  institutions  and  ideas  of  the  people 
of  the  American  states.  The  thing  itself,  however,  is  a  foreign 
importation.  Doubtless  the  growing  use  of  the  constitutional 
and  legislative  referendum  and  of  the  popular  initiative  in  con- 

1  E.  P.  Oberholtzer,  The  Referendum  in  America,  ch.  viii. 


136        STATE  GOVERNMENT  IN  UNITED  STATES 

nection  with  local  home  rule  would  sooner  or  later  have  suggested 
to  Americans  the  adoption  of  some  procedure  for  direct  legislation 
by  the  people  of  a  state  as  a  whole.  The  system  that  has  actually 
been  adopted,  however,  was  suggested  by  the  example  of  Switzer- 
land.1 The  first  state  to  adopt  the  statutory  initiative  and  ref- 
erendum was  South  Dakota  which  took  that  action  in  1898. 
The  statutory  initiative  and  referendum  now  exist  in  eighteen 
states.  In  addition  two  states  have  adopted  the  direct  popular 
referendum  alone.  The  first  state  to  adopt  the  constitutional 
as  well  as  the  statutory  initiative  was  Oregon  which  took  that 
action  in  1902.  The  constitutional  initiative  now  exists  in 
twelve  states.2 

THE  RECALL 

The  last  step  in  the  extension  of  the  powers  of  the  state  elec- 
torates has  been  the  adoption  of  the  popular  recall.  The  original 
Massachusetts  declaration  of  rights  contained  a  statement  to  the 
effect  that  "in  order  to  prevent  those  who  are  vested  with  author- 
ity from  becoming  oppressors,  the  people  have  a  right  at  such 
periods  and  in  such  manner  as  they  shall  establish  by  their  frames 
of  government,  to  cause  their  public  officers  to  return  to  private 
life."  In  the  beginning  frequent  elections  and  short  fixed  terms  of 
office  were  deemed  an  adequa'te  mode  of  preventing  those  vested 
with  authority  from  becoming  oppressors.  In  no  state  except 
Massachusetts,  however,  are  elections  now  as  frequent  as  in  the 
beginning,  and  a  need  has  long  been  felt  in  some  states  for  a  more 
direct  mode  of  removing  elected  officials  than  that  by  impeach- 
ment. In  1903  the  recall  was  first  introduced  in  Los  Angeles  for 
the  removal  of  municipal  officers  before  the  expiration  of  the 
terms  for  which  they  might  be  elected.  Like  the  procedure  for 
direct  legislation  by  the  people,  that  for  the  recall  of  a  public 
officer  is  set  in  motion  by  a  petition  of  a  certain  fraction  of  the 
electorate.  Unlike  the  popular  initiative  and  referendum,  the 
recall  was  not  a  conscious  imitation  of  any  foreign  institution, 
although  it  had  previously  existed  in  Switzerland.3  Under  the 

1  W.  E.  Rappard,  "The  Initiative,  Referendum,  and  Recall  in  Switzerland,"  in 
Annals  of  the  American  Academy  of  Political  and  Social  Science,  Sept.,  1912,  pp.  114- 
127. 

3  See  The  American  Year  Book  for  1915,  p.  82. 

1  W.  E.  Rappard,  op.  cit.,  p.  127. 


THE  REDIVISION  OF  POWERS  137 

Swiss  practice,  however,  the  procedure  may  be  employed  not 
only  for  the  recall  of  a  specified  officer  but  also  for  that  of  an 
entire  legislature.  Such  a  practice  in  effect  gives  to  legislatures 
an  indefinite  tenure  of  office  subject  to  a  maximum  limit,  and  the 
Swiss  consistently  so  fix  that  limit  as  to  assure  their  legislators  a 
normal  expectation  of  longer  official  life  than  is  the  case  in  the 
American  states.  The  state-wide  recall  was  first  introduced  in 
Oregon  in  1908  and  has  since  been  established  in  nine  other  states. 
In  Kansas  in  1914  a  further  stage  in  this  development  was  reached 
by  extending  the  application  of  the  recall  to  appointive  as  well  as 
to  elective  officers.1 

The  executive,  judicial,  and  popular  vetoes  in  their  modern 
forms  may  all  be  traced  back  to  their  beginning  in  the  original 
division  of  powers  adopted  in  Massachusetts.  The  modern  direct 
popular  initiative  is  a  more  radical  innovation,  for  which  there 
seems  to  be  no  precedent  in  the  original  state  constitutions, 
although  the  procedure  for  constitutional  amendment  adopted 
in  Georgia  in  1777,  but  found  to  be  impracticable,  was  closely 
akin  to  it.  There  remains  another  feature  of  the  modern  division 
of  powers  for  which  there  is  no  precedent  whatsoever  in  the  origi- 
nal state  constitutions,  namely,  the  legal  endowment  of  the  polit- 
ical party  by  law  with  special  powers  and  duties,  like  any  other 
recognized  organ  of  government. 

GROWTH  OF  POWER  OF  POLITICAL  PARTY 

For  many  years  after  the  establishment  of  the  party  system  in 
American  politics  the  political  party  remained  a  private  associa- 
tion. It  was  first  endowed  by  law  with  a  public  function  when 
the  Australian  ballot  was  introduced  into  the  electoral  system. 
The  important  power  which  was  then  conferred  upon  the  political 
party  was  the  power  of  designating  official  party  candidates  for 
all  elective  offices.  The  state  undertook  to  print  the  party 
designation  upon  the  official  ballot,  together  with  the  candidate's 
name,  so  that  the  least  educated  voter  could  vote  the  party  ticket 
as  easily  as  under  the  former  system  of  unofficial  ballots.  Im- 
portant powers  have  also  been  conferred  upon  political  parties 
in  connection  with  appointments  to  non-elective  offices.  Various 

1  The  American  Year  Book  for  1915,  p.  82. 


138        STATE  GOVERNMENT  IN  UNITED  STATES 

appointive  bodies,  especially  election  boards,  are  required  to  be 
composed  of  partisans,  and  consequently  the  administration  of 
the  affairs  of  such  bodies  is  a  partisan  as  well  as  a  public  function. 
A  more  radical  step  in  the  extension  of  the  powers  of  the  political 
party  has  recently  been  taken  in  Kansas.  By  the  terms  of  the 
amendment  for  the  recall  of  public  officers,  adopted  in  1914,  it  is 
provided  that  a  petition  for  the  recall  of  an  officer  shall  be  signed 
by  a  certain  proportion,  not  of  the  electorate,  but  of  the  members 
of  the  particular  party  to  which  the  officer  belongs.  Thus  the 
institution  of  proceedings  for  the  recall  in  Kansas,  like  the  nomina- 
tion of  public  officers  hi  all  states,  is  made  a  partisan  rather  than 
a  popular  function. 

In  the  transfer  of  power  to  the  political  party,  the  most  radical 
step  which  has  yet  been  proposed  is  the  adoption  of  the  representa- 
tive system,  called  proportional  representation.  The  principle 
of  the  proposed  reform  is  that  each  political  party  shall  be  entitled 
in  all  representative  bodies  to  a  number  of  representatives  pro- 
portionate to  the  number  of  its  voting  members.  Thus  a  party 
casting  forty  per  cent  of  the  total  vote  in  a  state  election  would 
be  entitled  to  four-tenths  of  the  seats  in  the  state  legislature.  This 
proposal  k  advocated  on  the  ground  that  a  truly  representative 
body  should  represent  as  nearly  as  possible  the  whole  electorate 
and  not  merely  the  greatest  number  voting  for  any  one  candidate 
in  each  of  the  several  representative  districts,  as  is  the  case  under 
the  established  system  of  plurality  representation. 

Proportional  representation  has  not  yet  been  established  in  any 
American  state,  but  a  somewhat  similar  system  was  established 
in  Illinois  in  1870.  It  was  provided  that  the  electors  in  each 
state  senatorial  district  should  be  entitled  to  choose  three  repre- 
sentatives to  the  lower  branch  of  the  state  legislature,  and  that 
each  elector  might  cast  his  three  votes  for  three  separate  can- 
didates, or  cumulate  them  upon  one  or  two  candidates.  This 
system  should  be  described  as  cumulative  voting  or  minority 
representation  rather  than  proportional  representation,  since  it 
would  not  allow  for  more  than  a  rough  adjustment  of  representa- 
tion to  party  strength.  Such  as  it  was,  it  marked  the  first  recogni- 
tion in  a  state  constitution  of  the  right  of  parties  as  well  as  of 
localities  to  special  representation  in  a  legislative  body.  Recent 
proposals,  to  extend  the  application  of  this  principle  will  be  dis- 


THE  REDIVISION  OF  POWERS  139 

cussed  in  a  later  chapter.  Suffice  it  to  point  out  that  not  only 
has  the  political  party  been  recognized  as  a  regular  organ  of 
government  hi  the  states,  but  it  has  also  been  endowed  with 
powers  of  considerable  and  hitherto  increasing  importance. 

SUMMARY 

There  is  nothing  inconsistent  with  the  original  principles  of 
American  government  in  the  various  developments  which  have 
taken  place  in  the  political  institutions  of  the  states.  The  forms 
of  government  have  undergone  some  remarkable  changes,  but 
they  are  still  republican.  The  division  of  powers  between  the 
different  branches  of  the  state  governments  has  been  affected 
by  the  changes  of  more  than  a  century  even  more  than  the  forms, 
but  the  people  have  less  occasion  than  ever  before  to  fear  anybody 
but  themselves.  The  evolution  of  the  state  governments  has 
been  characterized  by  the  operation  of  two  main  tendencies : 
first,  the  decrease  of  legislative  authority,  and  secondly,  the 
increase  of  that  of  the  electorates.  The  decline  of  legislative 
authority  has  been  marked  by  the  transfer  of  power  from  the 
legislative  branch  of  the  original  normal  type  of  government  to 
the  coordinate  branches,  the  executive  and  the  judiciary.  The 
rise  of  the  authority  of  the  electorates  has  been  marked  by  the 
increase  of  popular  control  over  all  three  of  the  coordinate 
branches.  These  changes  have  not  been  the  results  of  blind 
chance  or  the  caprice  of  fate.  They  have  been  produced  by  the 
continuous  adaptation  of  the  political  institutions  of  the  states 
to  the  needs  of  the  people,  as  determined  by  the  operation  of  the 
fundamental  forces  in  American  life,  the  biological,  economic,  and 
social  forces  that  have  made  the  American  people  what  they  are. 

The  forces  that  have  produced  such  great  changes  in  the  past 
will  continue  to  bring  about  changes  of  the  same  general  nature 
in  the  future,  if  they  continue  to  operate.  If  they  do  not  continue 
to  operate,  their  place  will  be  taken  by  other  forces  which  will 
produce  changes  of  a  different  sort.  Changes  of  some  sort  will 
take  place  in  American  political  institutions,  hereafter  as  hereto- 
fore. The  task  of  the  political  scientist  is  to  discover  the  nature 
of  the  forces  that  are  at  work,  and  to  point  out  the  manner  in 
which  existing  political  institutions  may  best  be  adapted  to  meet 
the  changing  needs  of  a  new  age. 


PART  III 
THE  WORKING  OF  THE  STATE  GOVERNMENTS 


CHAPTER  VI 

THE   STATE  ELECTORATES 

THE  electorate  may  be  defined  as  the  instrument  by  means 
of  which  the  people  of  a  state  authoritatively  declare  their  will 
with  respect  to  the  matters  constitutionally  reserved  to  them. 
The  will  of  the  people  may  be  expressed  through  public  opinion, 
but  it  gains  its  legal  force  through  the  electorate.  The  primary 
object  of  political  institutions  in  a  democratic  state  is  to  facili- 
tate the  faithful  interpretation  and  efficient  execution  of  the 
will  of  the  people,  and  of  these  institutions  the  electorate  is  the 
most  important.  In  other  words,  the  electorate  is  the  funda- 
mental organ  of  state  government  and  is  endowed  with  the 
function  of  exercising  the  powers  and  performing  the  duties  of 
government  theoretically  vested  in  the  people  themselves. 

EFFECT   OF   SUFFRAGE   QUALIFICATIONS   ON    SIZE   OF 
ELECTORATES 

The  Federal  Constitution  imposes  a  penalty  upon  a  state  in 
which  the  right  to  vote  is  denied  to  any  of  its  adult  male  citizens, 
except  for  participation  in  rebellion  or  other  crimes.  It  becomes 
necessary,  therefore,  first  to  inquire  to  what  extent,  if  any,  the 
states  by  their  restrictions  upon  the  exercise  of  the  suffrage  have 
incurred  the  liability  of  the  penalty,  namely,  reduction  of  repre- 
sentation in  the  federal  house  of  representatives  and  in  the  elec- 
toral college. 

The  operation  of  the  laws  governing  the  structure  of  the 
various  state  electorates  is  often  illustrated  by  a  comparison 
of  the  votes  cast  in  the  several  states  at  general  elections.  Al- 
though the  number  of  votes  cast  at  general  elections  in  different 
localities  is  subject  to  fluctuations  produced  by  purely  local 
causes  and  tending  to  impair  the  value  of  any  general  comparison 

143 


144        STATE  GOVERNMENT  IN  UNITED   STATES 

of  such  votes,  yet  the  public  interest  in  general  elections  in  presi- 
dential years  is  as  nearly  uniform  as  public  interest  in  anything 
connected  with  politics,  and  the  evidence  afforded  by  a  com- 
parison of  votes  cast  at  presidential  elections  throws  as  much 
light  upon  the  operation  of  the  suffrage  laws  of  the  several  states 
as  any  available  evidence  of  that  character.  The  following 
comparison  exhibits  the  ratio  between  the  average  of  the  votes 
cast  at  the  presidential  elections  of  1908  and  1912  and  the  num- 
ber of  adult  male  citizens  hi  the  several  states  according  to  the 
census  of  1910. 

The  ratio  of  votes  cast  to  adult  male  citizens  was  63  per  cent 
in  Massachusetts  and  65  per  cent  in  New  England  as  a  whole ; 
it  was  76  per  cent  in  New  York,  68  per  cent  in  Pennsylvania, 
and  84  per  cent  in  Delaware,  averaging  72  per  cent  in  the  five 
states  between  the  Hudson  and  the  Potomac ;  it  varied  in  the 
fourteen  states  of  the  upper  Mississippi  Valley,  extending  from 
West  Virginia,  Kentucky,  Missouri  and  Kansas  to  the  Canadian 
border,  between  88  per  cent  in  Indiana  and  64  per  cent  in  Minne- 
sota, averaging  for  the  entire  region  almost  80  per  cent ;  it  varied 
in  the  twelve  states  of  the  South,  extending  from  Virginia  to 
Texas,  between  60  per  cent  in  Oklahoma  and  nearly  50  per  cent 
in  North  Carolina,  to  1 7  per  cent  in  South  Carolina  and  1 5  per 
cent  in  Mississippi,  averaging  for  the  entire  region  31  per  cent. 
In  the  West  the  figures  are  complicated  by  the  increasing  adoption 
of  woman  suffrage.  In  the  four  equal  suffrage  states  wherein 
women  voted  both  in  1908  and  1912,  Wyoming,  Colorado,  Utah, 
and  Idaho,  the  ratio  of  all  votes  cast  to  adult  male  citizens  averaged 
115  per  cent.  In  Montana  and  Nevada,  the  only  Rocky  Moun- 
tain states  in  which  men  alone  voted  in  both  1908  and  1912, 
the  ratio  was  67  per  cent.  In  Oregon,  the  single  Pacific  coast 
state  in  which  men  alone  voted  in  both  1908  and  1912,  the  ratio 
was  59  per  cent.  If  the  ratio  of  votes  cast  to  male  citizens  of 
voting  age  was  the  same  in  the  four  equal  suffrage  states  as  in 
Montana  and  Nevada,  the  ratio  of  votes  cast  by  women  in  those 
states  to  the  total  number  of  female  citizens  of  voting  age  was 
not  less  than  56  per  cent.  So  in  California  and  Washington, 
if  it  be  assumed  that  the  men  voted  in  the  same  ratio  as  in  Ore- 
gon, it  follows  that  the  votes  cast  by  women  at  the  election  of 
1912  amounted  to  30  per  cent  of  the  total  number  of  women 


THE  STATE  ELECTORATES  145 

of  voting  age.  In  fact,  since  educational  restrictions  upon  the 
franchise  exist  in  California  and  Washington,  the  ratio  of  votes 
cast  by  men  to  adult  male  citizens  was  probably  less  than  in 
Oregon,  and  consequently  the  ratio  in  the  case  of  women  must 
have  been  higher  than  30  per  cent.  In  Arizona,  where  an  edu- 
cational restriction  also  exists,  the  ratio  in  the  case  of  men  was 
51  per  cent  in  1912.  If  the  men  of  California  and  Washington 
also  voted  at  that  ratio  in  1912,  which  would  seem  as  reasonable 
an  assumption  as  the  other,  it  follows  that  the  ratio  in  the  case 
of  women  hi  those  two  states  was  39  per  cent.  In  the  four 
oldest  equal  suffrage  states  women  apparently  voted  about  five- 
sixths  as  generally  as  men,  and  in  the  two  states  where  women 
voted  at  a  general  election  for  the  first  time  in  1912,  it  is  prob- 
able that  their  use  of  the  ballot,  as  compared  with  the  use  of 
the  ballot  by  men  in  the  same  states,  was  at  least  two-thirds  as 
general. 

The  effects  of  the  various  restrictions  upon  the  electoral  fran- 
chise in  the  states  may  be  estimated  by  comparing  the  ratio  of 
votes  cast  to  adult  male  citizens  in  the  several  sections  of  the 
country  with  the  same  ratio  in  New  York,  where  manhood 
suffrage  prevails  in  precisely  the  form  the  fourteenth  amendment 
was  designed  to  encourage.  This  comparison  indicates  that  in 
the  region  of  the  upper  Mississippi  Valley  the  electorate  is  actu- 
ally broader  than  the  standard  as  defined  by  the  fourteenth 
amendment.  This  would  also  be  expected,  since  manhood 
suffrage  prevails  in  all  those  states  and  in  half  of  them  votes 
are  also  granted  to  certain  classes  of  aliens.  Moreover,  in  some 
of  these  states  the  registration  laws  are  less  adequate  than  in 
New  York.  In  Pennsylvania,  however,  the  electorate  is  only 
90  per  cent  of  the  standard,  and  in  New  England  it  is  slightly 
less  than  in  Pennsylvania.  In  the  West,  if  men  alone  be  con- 
sidered, the  electorate  is  also  below  the  standard  to  about  the 
same  degree  as  in  New  England,  and  in  the  South  it  is  only 
two-fifths  of  the  standard  in  size.  If  the  penalty  provided  by 
the  fourteenth  amendment  were  to  be  imposed,  therefore,  New 
England  and  the  West  would  apparently  lose  about  one  congress- 
man in  ten  and  the  South  about  three  in  five. 

In  fact  the  comparison  of  the  votes  cast  in  the  several  states 
at  presidential  elections,  though  interesting  in  itself,  throws 


146       STATE  GOVERNMENT  IN  UNITED  STATES 

little  light  on  the  effect  of  the  constitutional  provisions  and 
statutes  governing  the  structure  of  the  state  electorates.  In 
doubtful  states  much  greater  efforts  are  made  to  bring  out  a 
full  vote  than  in  states  in  which  the  issue  is  not  doubtful.  New 
York  and  Indiana  are  bound  to  be  the  scene  of  more  hard-fought 
contests  in  presidential  years  than  Pennsylvania  or  Minnesota, 
and,  other  things  being  equal,  the  vote  cast  will  be  greater.  In 
the  South  particularly  the  size  of  the  vote  at  presidential  elec- 
tions is  a  poor  measure  of  the  effect  of  the  laws  relating  to  the 
suffrage.  The  vote  in  the  states  of  the  so-called  solid  South 
at  such  elections  is  abnormally  light,  because  the  results  of  the 
vote  are  a  foregone  conclusion.  In  fact,  the  southern  electorates 
are  much  larger  than  would  appear  from  the  comparatively 
small  participation  of  the  adult  male  citizens  in  presidential 
elections,  and  any  estimate  of  the  size  of  those  electorates  based 
upon  the  presidential  vote  is  very  misleading. 

THE  NUMBER  OF  REGISTERED  VOTERS 

A  better  test  of  the  effect  of  the  suffrage  restrictions  of  the 
several  states  upon  the  structure  of  the  state  electorates  is  af- 
forded by  a  comparison  between  the  number  of  registered  voters 
and  that  of  adult  male  citizens.  Such  a  test  is  also  of  more 
significance,  since  it  is  upon  the  basis  of  the  proportion  of  adult 
male  citizens  disfranchised  that  the  penalty  provided  by  the 
fourteenth  amendment  is  to  be  imposed.  In  Massachusetts  in 
1912  the  registered  voters  numbered  over  80  per  cent  of  the 
adult  male  citizens ;  in  New  York  they  numbered  88  per  cent ; 
in  Oregon,  73  per  cent;  and  in  Delaware,  90  per  cent.  In 
Arizona,  where  an  educational  test  similar  to  that  in  Massa- 
chusetts prevailed,  the  registered  voters  in  1912  comprised  only 
67  per  cent  of  the  adult  male  citizens,  and  in  Florida,  where  a 
tax-paying  qualification  aimed  at  the  negro  was  maintained, 
the  ratio  was  42  per  cent.  If,  however,  the  negro  is  left  out  of 
the  reckoning  in  Florida,  as  the  alien  immigrant  is  excluded 
in  Massachusetts,  it  appears  that  the  Florida  electorate  com- 
prised no  less  than  76  per  cent  of  the  adult  male  citizens  of  the 
white  race,  a  larger  proportion  than  in  Oregon. 

That  the  restrictions  in  the  southern  states,  aimed  at  the 


THE  STATE  ELECTORATES 


147 


negro,  were  designed  to  exclude  negroes  only,  is  the  plain  in- 
ference to  be  drawn  from  the  invention  of  the  "  grandfather  " 
clause.  That  they  had  the  desired  effect  seems  to  be  indicated 
by  the  available  evidence.  The  operation  of  the  restrictions 
which  have  been  aimed  at  the  negroes  is  illustrated  by  the 
statistics  showing  the  number  of  registered  voters  before  and 
after  the  adoption  of  the  restrictions. 

(i)    Virginia    (negro    disfranchisement    by    constitution    of 
1902). l 

NUMBER  OF  REGISTERED  VOTERS 


WHIIE 

COLORED 

TOTAL 

1900 

1905 

301,000 

276,000 

I47,OOO 
2I,OOO 

448,000 
297,000 

(2)    Louisiana   (negro  disfranchisement   by   constitution  of 
1898)  .2 


WHITE 

COLORED 

TOTAL 

1900 
Males  over  21    .... 
Literate  

178,595 

14.6,210 

147,348 
157,086 

325,943 
20?,  30? 

Illiterate  

72,376 

90,262 

122.438 

1908 
Registered  voters    .     .     . 

152,135 

1.743 

153,878 

(3)    Lowndes    Co.,   Ala.    (negro    disfranchisement   by    con- 
stitution Of    IQOl).3 


WHITE 

COLORED 

1900 
Males  over  21   

I,X»8 

6.4CC 

Literate  

I.OS7 

1,788 

Illiterate       

81 

4,667 

1902 
Registered  voters  

1,007 

•JO 

1  See  Magruder,  op.  cit.,  p.  93. 

1  See  W.  E.  B.  Dubois,  "  Social  Effects  of  Emancipation,"  in  The  Survey,  Feb. 

1913.  PP-  570-573- 
1  See  Dubois,  loc.  cit. 


148       STATE  GOVERNMENT  IN  UNITED  STATES 

The  last  case  shows  the  conditions  that  obtain  in  a  typical 
county  of  the  black  belt,  and  clearly  reveals  the  efficacy  of  the 
Alabama  suffrage  tests  as  a  means  of  maintaining  white  suprem- 
acy in  politics. 

The  recent  decisions  by  the  Supreme  Court  of  the  United  States 
that  certain  "grandfather"  clauses  are  unconstitutional,  because 
in  conflict  with  the  fifteenth  amendment  to  the  Federal  Constitu- 
tion, need  not  have  the  effect  of  extending  the  suffrage  to  any 
negroes  who  are  now  disfranchised.1  They  may  merely  serve  to 
exclude  a  number  of  poor  and  ignorant  whites  who  have  hitherto 
been  permitted  to  vote,  and  consequently  still  further  increase 
the  liability  of  the  southern  states  to  a  reduction  of  representa- 
tion in  congress,  in  case  the  penalty  provided  by  the  fourteenth 
amendment  should  be  enforced. 

In  fact,  however,  the  liability  of  the  states  to  a  reduction  of 
representation  in  Congress  and  in  the  electoral  college  cannot 
be  computed  upon  the  basis  of  the  number  of  registered  voters. 
Many  adult  male  citizens  who  under  the  laws  of  their  states 
might  be  registered,  if  they  chose  to  comply  with  the  rules  for 
registration,  actually  fail  to  do  so.  Sometimes  this  failure  is  the 
result  of  indifference  and  neglect.  Sometimes  it  is  the  result  of 
temporary  absence  from  the  place  of  residence  at  the  time  of 
registration  or  other  casual  circumstances  beyond  the  control 
of  the  person.  Sometimes  it  is  the  result  of  permanent  removal 
from  the  district  or  state  and  inability  to  comply  with  the  resi- 
dence requirements  established  in  the  new  place  of  residence. 
Sometimes  it  is  the  result  of  an  onerous  registration  procedure 
calculated  to  deter  the  shiftless  or  ignorant  voter  from  making 
good  his  claim  to  the  ballot.  The  registered  voters  in  a  state 
therefore  are  not  identical  with  the  legal  voters,  that  is,  the 
persons  falling  within  the  class  to  which  the  franchise  is  extended 
by  the  state  constitution.  But  it  is  upon  the  basis  of  the  number 
of  adult  male  citizens  who  may  not  legally  become  voters  in  a 
state  that  the  penalty  prescribed  by  the  fourteenth  amendment 
is  to  be  imposed.  Disfranchisement  accomplished  by  the  failure 
of  properly  qualified  persons  to  register  has  nothing  to  do  with 
the  case. 

Now  as  a  matter  of  fact  the  requirement,  where  established, 

1  Guinn  v.  U.  S.,  238  U.  S.  347;  Myers  v.  Anderson,  238  U.  S.  368  (1915). 


THE  STATE  ELECTORATES  149 

that  the  legal  voter  make  good  his  claim  to  the  ballot  by  personal 
registration  has  more  effect  upon  the  actual  structure  of  the 
electorate  than  the  literacy  and  property  qualifications  that 
exist  in  some  of  the  states.  In  Massachusetts,  for  example, 
only  about  75  per  cent  of  the  adult  males  are  citizens.  Of  the 
adult  male  citizens  over  96  per  cent,  according  to  the  state  census 
of  1905,  are  legal  voters,  the  balance  being  for  the  most  part 
naturalized  illiterate  foreigners.  But'  the  number  of  voters 
registered  for  the  presidential  election  of  1908  amounted  to 
only  86^  per  cent  of  the  total  number  of  legal  voters.  In  other 
words,  whereas  less  than  4  per  cent  of  the  adult  male  citizens 
were  disfranchised  by  the  existence  of  tfre  literacy  qualification 
for  the  suffrage,  13  per  cent  were  disfranchised  by  failure  to 
register.  In  Massachusetts,  therefore,  about  one-sixth  of  the 
adult  male  citizens,  and  about  three-eighths  of  all  the  adult 
males  were  practically  excluded  from  the  electorate  in  1908 
without  any  violation  of  the  fourteenth  amendment  sufficient 
to  cause  the  reduction  of  the  state  representation  in  Congress 
by  a  single  vote,  in  case  the  penalty  provided  by  the  amendment 
should  be  imposed.  Outside  of  the  South  it  is  doubtful  if  the 
enforcement  of  the  amendment  would  cause  the  loss  of  represen- 
tation anywhere,  except  possibly  in  Pennsylvania,  and  in  that 
state  the  loss  would  be  very  slight. 

In  the  South,  especially  in  the  cotton  belt,  the  effect  of  the 
constitutional  restrictions  upon  the  franchise  is  more  pronounced, 
and  the  effect  of  the  enforcement  of  the  fourteenth  amendment 
would  be  greater.  But  even  there  it  would  not  be  so  great  as 
might  be  inferred  by  a  comparison  of  the  registration  figures 
with  those  showing  the  number  of  adult  male  citizens.  Assum- 
ing, as  seems  warranted,  that  at  least  the  illiterate  and  im- 
pecunious negroes  have  been  disfranchised,  and  that  the  suffrage 
has  been  generally  restricted  to  persons  of  "substance"  or  "under- 
standing" or  approved  descent,  it  becomes  evident  that  the 
arrangements  generally  adopted  do  not  fall  far  short  of  manhood 
suffrage  for  the  whites.  Perhaps  this  statement  may  have  to 
be  modified  presently  with  respect  to  the  states  which  have  re- 
lied upon  the  "grandfather"  clause  to  prevent  the  disfranchise- 
ment  of  whites  who  otherwise  could  not  qualify  as  voters,  but 
it  seems  likely  to  remain  substantially  true  of  states  like  Missis- 


150       STATE  GOVERNMENT  IN  UNITED  STATES 

sippi,  which  rely  upon  discrimination  in  favor  of  the  whites  in 
the  enforcement  of  the  registration  laws  to  prevent  white  dis- 
franchisement.  In  Florida,  for  example,  if  the  negro  is  left  out 
of  the  reckoning,  the  registered  voters  number  more  than  three- 
fourths  of  the  adult  male  citizens.  In  Massachusetts,  as  already 
shown,  they  number  from  four-fifths  to  five-sixths,  and  in  New 
York  about  seven-eighths.  Doubtless  not  all  the  negroes  should 
be  left  out  of  the  reckoning  in  Florida,  but  even  so,  the  dis- 
franchisement  of  white  citizens  cannot  be  much  greater  than  in 
New  England.  In  general,  the  practice  of  the  southern  states 
in  offering  the  voter  an  option  between  several  modes  of  qualify- 
ing for  the  franchise  affords  the  white  voter  at  least  as  much 
opportunity  to  register  as  in  Massachusetts  or  Pennsylvania, 
and  if  he  does  not  so  generally  avail  himself  of  his  opportunity, 
the  cause  must  be  ascribed  to  lack  of  inclination. 


EFFECT  OF  SUFFRAGE  QUALIFICATIONS  ON  CHARACTER  OF 

GOVERNMENT 

The  influence  of  the  various  electoral  qualifications  upon  the 
character  of  the  electorates,  and  hence  upon  the  character  of 
government  in  general,  has  always  been  an  engrossing  topic  of 
speculation.1  There  have  been  few  systematic  attempts,  how- 
ever, to  check  the  results  of  such  speculation  by  inquiry  into 
the  known  or  knowable  facts.2  The  principal  qualifications  de- 
signed to  improve  the  character  of  the  electorate  are  those  re- 
lating to  age,3  property,  education,  and  sex.  Those  writers 

1  See  J.  S.  Mill,  Representative  Government,  and  Sir  H.  S.  Maine,  Popular  Govern- 
ment, for  specimens  of  the  speculation  in  England  in  the  nineteenth  century.     For 
similar  speculative  discussions  of  the  suffrage  by  American  writers,  see  Francis 
Lieber,  Manual  of  Political  Ethics,  and  Theodore  Woolsey,  Political  Science.    See 
also  the  Record  of  Debates  in  the  following  state  constitutional  conventions :  Mas- 
sachusetts, 1820;    New  York,  1821;    and  Virginia,  1829-30.     See,  also,  the  Con- 
gressional Record,  1869,  with  reference  to  the  proposed  submission  to  the  states  of 
the  fifteenth  amendment. 

2  See  Graham  Wallas,  Human  Nature  in  Politics,  Introduction. 

8  The  exclusion  of  persons  under  some  prescribed  age  limit  has  always  been  the 
practice  in  the  United  States  and  the  fixing  of  the  limit  at  twenty-one  years  of  age 
now  awakens  no  controversy.  In  some  foreign  countries,  the  limit  has  been  placed 
higher,  most  frequently  at  twenty-five  years,  thus  increasing  the  minimum  experience 
of  life,  so  far  as  age  may  be  regarded  as  a  measure  of  experience,  required  of  the  voter. 
There  is  no  country  where  the  franchise  is  conferred  upon  those  below  the  age  of 


THE  STATE  ELECTORATES  151 

who  have  discussed  the  exclusion  from  the  electoral  franchise 
of  the  young,  the  poor,  the  ignorant,  and  the  women  have  usually 
been  much  more  interested  in  making  out  a  case  for  or  against 
the  exclusion  of  such  persons  than  in  making  known  the  truth 
for  its  own  sake.  Those  voters  who  have  sanctioned  the  es- 
tablishment or  maintenance  of  a  restrictive  franchise  have 
usually  been  confronted  with  a  condition,  not  a  theory,  and 
have  made  their  decision  with  a  view  to  its  effect  on  immediate 
practical  problems.  In  the  South,  for  example,  property  and 
educational  qualifications  have  been  established  by  the  white 
voters  because  such  qualifications  were  known  to  be  more  bur- 
densome to  negroes  than  to  whites,  not  because  they  were  de- 
sired for  their  own  sake.  In  certain  northern  and  western 
states  literacy  tests  have  been  adopted  because  they  were  known 
to  be  more  burdensome  to  naturalized  aliens  than  to  native- 
born  citizens.  The  effect  of  such  qualifications  upon  the  char- 
acter of  government  reflects  the  results  of  the  disfranchisement 
of  negroes  and  of  aliens,  but  in  most  cases  throws  little  light  on 
the  probable  results  of  the  disfranchisement  of  the  poor  and  the 
ignorant,  regardless  of  race,  color,  or  previous  condition. 

In  the  states  where  the  effect  of  property  or  educational  tests 
is  least  complicated  by  extraneous  considerations  the  results  of 
the  establishment  of  such  tests  are  scarcely  less  obscure.  In 
Pennsylvania  and  Massachusetts,  for  example,  there  are  property 
and  educational  tests,  respectively,  and  in  New  York  and  Ohio 
there  is  manhood  suffrage.  But  it  is  exceedingly  difficult  to 
discover  that,  if  the  two  former  states  are  better  or  worse  governed 
than  the  two  latter,  as  the  case  may  be,  the  differences  in  the 
character  of  the  government  are  due  to  the  differences  in  the 
character  of  the  electorates.  Any  Pennsylvanian  who  can  afford 
to  own  a  dog  and  pay  a  tax  thereon  can  qualify  under  the  property 

twenty-one.  It  has  been  suggested  in  this  country  that  there  should  be  a  vote  for 
every  citizen,  regardless  of  age,  parents  or  guardians  casting  the  votes  for  minor 
children,  thus  giving  greater  weight  in  politics  to  the  family  and  to  the  adults  who 
represent  families,  as  against  adults  who  have  not  assumed  family  responsibilities. 
As  a  rule,  such  an  arrangement  would  operate  directly  contrary  to  a  literacy 
or  property  test,  and  the  suggestion  has  not  been  taken  seriously  by  the  advocates 
of  the  "fitness"  theory  of  the  franchise.  Those  who  believe  in  a  "natural  right" 
to  vote  apparently  assume  for  the  most  part  that  "nature"  is  interested  in  men 
only. 


152       STATE  GOVERNMENT  IN  UNITED  STATES 

test,  and  in  practice  such  a  property  qualification  cannot  be 
expected  to  illustrate  the  effects  theoretically  claimed  for  a 
franchise  based  on  property.  Any  Massachusetts  man  who  can 
read  a  line  of  the  constitution  in  English  and  write  his  name 
can  qualify  under  the  literacy  test,  and  in  practice,  at  least  in 
a  state  where  a  common  school  education  is  free  and  compul- 
sory, such  a  test  cannot  be  expected  to  illustrate  the  effects 
theoretically  claimed  for  a  franchise  based  on  intelligence.  In 
fact  the  number  of  Pennsylvanians  and  Massachusetts  men 
who  are  disqualified  by  the  property  and  educational  tests, 
respectively,  is  so  small  compared  with  the  number  who  are 
otherwise  prevented  from  voting,  and  the  differences  between 
the  governments  of  New  York  and  Ohio,  on  the  one  hand,  and 
those  of  Massachusetts  and  Pennsylvania,  on  the  other,  are  so 
much  greater  in  other  respects  than  in  respect  to  the  franchise, 
that  no  clear  relation  between  the  suffrage  and  the  general  char- 
acter of  government  in  these  states  is  discernible.  In  short, 
it  may  be  candidly  confessed  that  it  is  not  possible  to  prove 
that  the  governments  of  Massachusetts  and  Pennsylvania  are 
either  better  or  worse  because  of  the  exclusion  of  a  number  of 
impecunious  and  illiterate  male  citizens  from  the  electorate. 

EFFECT  OF  WOMAN  SUFFRAGE 

It  might  be  supposed  that  the  effects  of  the  exclusion  of 
women  from  the  state  electorates  could  be  more  easily  discovered. 
In  fact,  however,  the  question  of  woman  suffrage  is  not  solely 
one  of  sex.  In  the  official  campaign  bulletin  published  in  Ne- 
braska in  1914  for  the  better  information  of  the  voters  concern- 
ing the  measures  submitted  to  them  for  approval  at  the  general 
election,  the  following  argument  against  the  extension  of  the 
franchise  to  women  was  published  by  the  opponents  of  equal 
suffrage:  "Women  suffrage  will  greatly  increase  the  taxes  of 
the  state  .  .  .  because  the  city  vote,  which  is  largely  non- 
taxpaying,  will  be  increased  at  the  expense  of  the  farmer  vote, 
which  is  largely  tax-paying."  The  same  argument  appeared 
in  the  semiofficial  campaign  bulletin  published  the  same  year 
by  the  secretary  of  state  of  Missouri.  In  Montana  in  the  same 
year  a  similar  attempt  was  made  to  confuse  the  issue.  The 


THE  STATE  ELECTORATES  153 

mine  workers  were  urged  to  vote  against  the  measure  on  the 
ground  that  there  was  a  larger  proportion  of  women  to  men  in 
the  agricultural  districts  than  in  the  mining  districts,  and  that 
the  extension  of  the  franchise  to  women,  therefore,  would  bring 
a  relative  increase  of  political  power  to  the  agricultural  element 
in  the  state  and  a  corresponding  decrease  in  that  of  the  miners. 
In  other  words,  the  adoption  of  equal  suffrage  was  made  a  class 
issue.  The  individual  interests  of  women  as  women  were  de- 
clared to  be  subordinate  to  their  class  interests  as  farmers'  or 
miners'  wives.  To  the  extent  that  the  extension  of  the  franchise 
to  women  has  altered  the  relative  political  importance  of  differ- 
ent economic  or  social  groups  of  men  and  women  the  supposed 
effects  of  equal  suffrage  may  have  been  in  reality  the  effects  of 
such  alterations  in  the  distribution  of  power. 

Even  if  the  question  of  woman  suffrage  were  solely  one  of 
sex,  it  would  not  be  easy  to  discover  precisely  what  has  been 
the  effect  upon  the  conduct  of  government  of  the  entrance  of 
women  into  politics.  In  the  few  states  in  which  women  have 
voted  on  the  same  terms  as  men  for  a  considerable  period  of 
years,  there  has  never  been  any  political  issue  which  divided 
men  and  women  upon  sex  h'nes,  nor  has  there  been  any  notable 
legislation  in  the  special  interest  of  women  which  had  not  pre- 
viously been  enacted  in  some  state  where  men  alone  were  voters. 
On  the  other  hand,  there  has  been  no  legislation  in  those  states 
so  unfavorable  to  women  as  in  certain  states  where  only  men 
were  voters.  Until  recently,  however,  the  influence  of  women 
in  politics,  so  far  at  least  as  the  character  of  legislation  was  con- 
cerned, was  negative  rather  than  positive.  Within  the  last 
half  dozen  years  the  practice  of  excluding  women  from  the  state 
electorates  has  been  generally  abandoned  throughout  the  West, 
and  at  the  same  time  there  has  been  a  notable  increase  in  the 
output  of  legislation  in  the  interest  of  women.  The  legal  pro- 
tection of  women,  especially  of  wage-earning  women,  in  the 
equal  suffrage  states  has  become  more  systematic  and  more 
adequate  than  elsewhere.  But  it  is  not  clear  that  this  result 
is  to  be  explained  by  the  adoption  of  the  principle  of  equal 
suffrage.  Both  the  more  rapid  adoption  of  legislation  in  the 
interest  of  women  and  the  adoption  of  equal  suffrage  itself  may 
be  explained,  since  they  have  occurred  almost  simultaneously, 


154       STATE  GOVERNMENT  IN  UNITED  STATES 

as  the  joint  results  of  a  different  attitude  towards  women  than 
that  which  formerly  prevailed  in  the  West  and  still  prevails 
elsewhere.  Public  men  in  the  West  almost  unanimously  profess 
to  be  satisfied  with  the  results  of  the  political  equality  of  the 
sexes.  In  no  state  has  there  been  any  notable  attempt  to  restore 
the  political  disabilities  of  women,  either  on  the  part  of  men  or 
on  the  part  of  women.  In  short,  public  opinion  has  approved 
the  removal  of  those  disabilities,  and  that  fact  constitutes  the 
best  evidence  that  the  former  exclusion  of  women  from  the  elec- 
torate served  no  useful  purpose  in  the  western  states. 

It  is  upon  the  character  of  women  themselves,  however,  that 
the  effects  of  equal  suffrage  have  been  most  clear.  Miss  Helen 
L.  Sumner,  whose  investigations  into  the  operation  of  equal 
suffrage  hi  Colorado  were  unusually  deliberate  and  judicious, 
summarizes  this  aspect  of  the  question  as  follows:  "The  effect 
of  equal  suffrage  upon  the  women  themselves,  their  outlook 
upon  life,  and  their  relationship  to  the  home,  is,  in  the  opinion 
of  many,  the  crux  of  the  problem.  Over  the  majority  of  women, 
indeed,  it  is  already  evident  that  equal  suffrage  has  exercised  a 
good  influence,  and  one  which  inevitably  reacts  to  a  certain 
extent  upon  political  life.  .  .  .  Equal  suffrage  has  brought, 
then,  practically  no  loss,  and  some  decided  gain,  the  latter 
mainly  evident  in  the  effect  of  the  possession  of  the  ballot  upon 
the  women  of  Colorado.  It  has  enlarged  their  interests,  quick- 
ened their  civic  consciousness,  and  developed  in  many  cases 
ability  of  a  high  order  which  has  been  of  service  to  the  city,  the 
county,  and  the  state.  .  .  .  The  Colorado  experiment  certainly 
indicates  that  equal  suffrage  is  a  step  in  the  direction  of  a  better 
citizenship,  a  more  effective  use  of  the  ability  of  women  as  an 
integral  part  of  the  race,  and  a  closer  understanding  between 
men  and  women."  l  That  no  less  than  this  is  the  general  im- 
pression of  the  closest  observers  would  seem  to  be  indicated  by 
the  fact  that  states  adjoining  those  which  have  already  abolished 
the  political  disabilities  of  women  are  those  which  most  readily 
do  likewise. 

1  Helen  L.  Sumner,  Equal  Suffrage,  The  Results  of  an  Investigation  in  Colorado 
(New  York,  1909),  pp.  258-260. 


THE  STATE  ELECTORATES         155 

THE  THEORY  OF  THE  FRANCHISE 

The  widespread  public  discussion  of  the  question  of  votes  for 
women  has  served  a  useful  purpose  in  causing  a  reexamination 
of  the  general  grounds  for  the  exclusion  of  any  class  of  persons 
from  the  electoral  franchise.  The  doctrine  of  natural  rights 
has  been  generally  understood  by  Americans  to  mean  equal 
rights,  but  when  the  idea  of  equal  rights  is  explained  as  it  was 
explained  by  Lincoln,  and  no  other  explanation  is  possible  if  the 
sincerity  of  the  American  people  is  to  be  successfully  vindicated, 
it  becomes  clear  that  no  person  can  assert  a  claim  to  the  fran- 
chise regardless  of  his  fitness.  The  doctrine  of  natural  rights, 
therefore,  like  the  doctrine  that  the  franchise  is  a  privilege  to 
be  conferred  only  upon  those  who  are  fit  for  its  exercise,  implies 
the  recognition  of  some  suitable  standard  of  fitness.  The 
standards  may  not  be  the  same,  but  in  either  case  they  would 
include  at  least  the  following:  (i)  loyalty  to  the  fundamental 
principles  of  American  government,  that  is,  to  the  principles 
of  popular  sovereignty  and  the  reign  of  law,  and  to  the  constitu- 
tion of  the  United  States;  (2)  willingness  to  use  the  vote,  ac- 
cording to  one's  conscience,  for  the  best  good  of  the  common- 
wealth without  fear  or  favor;  and  (3)  a  reasonable  degree  of 
political  intelligence.  Now  neither  the  ownership  of  property 
nor  literacy  hi  themselves  afford  any  evidence  of  the  attain- 
ment of  such  a  standard  of  fitness.  Property  can  be  acquired 
by  the  exploitation  of  society  as  well  as  by  the  service  of  society. 
Mere  money-making,  even  if  the  money-maker  keeps  within 
the  law,  is  not  the  best  training  for  statesmanship.  The  accu- 
mulation of  information,  like  money-making,  is  not  identical 
with  growth  in  wisdom.  Education  may  make  a  clever  rogue 
as  well  as  an  intelligent  voter.  Success  does  not  make  a  good 
citizen  of  a  thief,  and  much  book  learning  is  to  be  found  within 
the  walls  of  our  prisons.  In  short,  political  intelligence  is  not 
discoverable  either  by  the  tax  collector  or  by  the  school  examiner. 
Public  spirit  and  loyalty  are  evidenced  by  the  whole  conduct  of 
life,  and  cannot  be  tested  on  life's  threshold.  Mechanical  tests 
of  fitness  may  facilitate  the  elimination  from  the  electorates  of 
the  feeble-minded  and  the  criminally  vicious.  More  than  that 
is  impossible. 


156       STATE  GOVERNMENT  IN  UNITED  STATES 

The  exclusion  of  women  from  the  electorates,  like  the  exclusion 
of  men  with  little  property  or  education,  cannot  be  justified  in 
modern  times  upon  either  of  the  theories  which  have  hitherto 
influenced  the  mind  of  the  American  people.  The  doctrine  of 
natural  rights  may  not  justify  the  thrusting  of  the  ballot  upon 
a  reluctant  womanhood,  but  neither  can  it  justify  the  with- 
holding of  the  ballot  from  women  who  declare  their  wish  to  par- 
ticipate actively  in  the  making  of  the  laws  under  which  they 
are  governed.  The  demand  of  women  for  political  equality 
with  men  cannot  be  consistently  denied  by  those  who  believe 
in  natural  rights  without  denying  the  humanity  of  women. 
The  doctrine  that  the  franchise  is  a  privilege  to  be  conferred 
upon  those  who  are  fit  is  as  repugnant  to  political  discrimina- 
tions against  women  solely  on  account  of  their  sex  as  is  the 
doctrine  of  natural  rights.  Women,  like  men,  may  be  loyal 
to  the  principles  of  our  government,  public-spirited,  and  politi- 
cally intelligent.  To  the  extent  that  they  are  so,  their  "right" 
to  vote,  if  they  wish,  like  men,  must  be  recognized,  whether 
the  theory  of  the  franchise  be  founded  upon  the  doctrine  of 
natural  rights  or  upon  that  of  fitness.  If  tests  of  fitness  are  to 
be  exacted  of  applicants  for  admission  to  the  franchise,  they 
should  be  applied  without  distinction  of  sex.  The  doctrine  that 
only  those  should  vote  who  are  able,  in  case  of  need,  to  fight  is 
without  foundation  in  the  political  philosophy  of  the  American 
people.  Neither  ability  nor  inability  to  fight  was  originally 
recognized  as  pertinent  to  the  question  of  the  suffrage.  What 
is  expected  by  the  state  from  its  citizens  is  not  uniform  service 
from  all  alike,  but  service  from  each  according  to  his  ability. 
Young  men  for  war,  old  men  for  counsel,  is  an  ancient  maxim, 
which  may  still  serve  to  show  the  part  to  be  played  by  men  in 
the  conduct  of  military  operations.  In  modern  warfare  many 
young  men,  too,  must  keep  out  of  the  fight  in  order  to  keep  up 
the  supply  of  the  munitions  of  war.  Under  the  division  of  labor 
which  characterizes  modern  industry,  whether  constructive  or 
destructive,  woman's  part  is  no  less  essential  than  man's.  But 
the  whole  discussion  of  the  part  of  woman  in  war  is  beside  the 
point,  for  service  in  the  army  and  service  in  the  electorate  are 
two  different  propositions. 

It  is  coming  to  be  recognized  that  the  electoral  franchise  is 


THE  STATE  ELECTORATES  157 

neither  a  right  nor  a  privilege.    It  is  a  public  office.    The  ar- 
rangements for  selecting  the  members  of  the  electorate,  like 
those  for  selecting  the  holders  of  any  public  office,  must  be 
justified  by  the  end  that  the  office  is  intended  to  fulfill.     The 
electorate  is  Intended  to  voice  the  will  of  the  people,  and  those 
should  be  charged  with  the  duty  of  voting  whose  experience  in 
life  is  such  as  enables  them  to  speak  with  authority  for  any 
class  whose  welfare  is  essential  to  the  welfare  of  the  whole  people. 
So  long  as  women's  experience  of  life  was  gamed  mainly  within 
the  household,  the  practice  of  treating  the  household  as  a  political 
unit  and  polling  the  men  only  was  satisfactory.     But  when  the 
household  ceased  to  be  an  industrial  unit,  because  of  the  develop- 
ment of  the  factory  system  of  industry  and  the  employment  of 
women  in  large  numbers  in  capitalistic  establishments,  the  ex- 
perience of  women  became  something  more  than  the  experience 
of  the  housewife,  and  though  the  household  remains  a  social 
unit,  the  opinion  of  men  alone  fails  to  reflect  the  whole  experience 
of  the  people.     Moreover,  the  progress  of  modern  civilization 
has  been  marked  by  a  gradual  expansion  of  the  functions  of  the 
state.     Many  services  are  now  rendered  through  the  instrumen- 
tality of  governmental  officials,  which  in  former  times  were 
rendered  directly  by  the  members  of  the  household.     The  supply 
of  water,  milk,  and  food,  and  of  the  family  necessaries  in  general 
is  now  controlled  or  regulated  to  some  degree  by  the  state. 
When  these  services  were  chiefly  matters  of  purely  domestic 
concern,  woman's  experience  of  life  was  adequately  reflected 
by  her  voice  in  the  management  of  the  household.     But  now 
that  the  state  is  for  certain  purposes  like  a  great  household, 
women,  if  they  are  to  continue  to  exert  as  heretofore  their  proper 
influence  in  household  affairs,  must  participate  in  the  govern- 
ment of  the  state.     If  the  state  is  to  perform  satisfactorily  the 
household  duties  which  it  has  assumed,  it  must  be  inspired  by  a 
spirit   that  is  not  only  paternal  but  also   maternal.     Public 
officials  must  feel  their  responsibility  to  women  as  well  as  to 
men,  and  this  feeling  can  be  created  most  effectively  by  putting 
the  ballot  in  the  hands  of  women.     In  short,  the  modern  state 
needs  women  voters  as  well  as  men  voters,  because  the  will  of 
the  state  should  reflect  the  experience  of  women  as  well  as  the 
experience  of  men. 


158       STATE  GOVERNMENT  IN  UNITED  STATES 

It  would  be  well  to  exclude  from  the  franchise  those  who  are 
unfit  for  the  duties  of  the  office,  if  it  were  practicable.  Unfor- 
tunately, it  does  not  seem  practicable  to  do  more  than  exclude 
a  small  number  of  the  most  conspicuously  unfit.  This  is  ac- 
complished more  effectually  by  the  requirements  of  residence 
and  registration  than  by  more  specialized  tests  of  fitness  such 
as  literacy  or  the  payment  of  taxes.  The  principal  effect  of 
such  a  test  as  that  of  literacy  is  indirect  rather  than  direct,  for 
the  requirement  that  every  voter  be  able  to  read  and  write 
enables  the  state  to  adopt  more  efficient  registration  and  elec- 
tion laws  than  is  practicable  if  provision  must  be  made  for 
illiterate  voters.  If  the  states,  nine  in  number,  where  literacy 
is  required  of  all  voters,  are  better  governed  than  other  states, 
the  evidence  thereof  must  be  found  in  a  study  of  the  methods 
of  organizing  the  electorate  and  managing  elections.  The  legis- 
lation regulating  the  form  of  the  ballot  and  the  conduct  of  cam- 
paigns, the  provisions  designed  to  facilitate  the  expression  of  a 
sound  and  deliberate  public  opinion  at  the  polls,  are  more  im- 
portant to  a  democratic  state  than  specialized  tests  of  fitness 
for  the  franchise.  The  state  which  would  profit  most  by  the 
wisdom  and  experience  of  its  members  must  so  organize  the 
electorate  and  regulate  the  conduct  of  elections  as  to  secure  the 
freest  and  fullest  possible  expression  of  honest  and  enlightened 
opinion  at  the  polls.  Where  the  electorate  is  rightly  organized 
and  elections  are  properly  conducted,  it  is  more  important  that 
all  those  whose  experience  of  life  is  socially  useful  should  be  en- 
franchised than  that  a  few  more  or  less  of  the  unfit  should  be 
disfranchised. 

ORGANIZATION  OF  THE  ELECTORATE 

The  first  step  in  the  organization  of  the  electorate  is  the  divi- 
sion of  the  state  into,  districts  suitable  for  the  choice  of  the 
several  sorts  of  public  officers.  In  the  beginning  the  formation 
of  electoral  districts  was  comparatively  simple.  For  most  elec- 
tions the  original  divisions  of  the  states  for  purposes  of  local 
government  were  equally  suitable.  In  New  England,  the  town, 
in  the  South,  the  county,  was  the  unit  of  representation  in  the 
lower  branch  of  the  legislature.  For  the  election  of  members 


THE  STATE  ELECTORATES  159 

of  the  upper  branch  more  extensive  districts  were  necessary. 
In  Massachusetts  the  county  originally  served  as  the  senatorial 
district.  In  New  York  and  elsewhere  outside  of  New  England 
the  senatorial  district  generally  consisted  of  a  union  of  counties. 
No  other  districts  were  required.  After  the  adoption  of  the 
Federal  Constitution  and  the  inauguration  of  the  practice  of 
choosing  members  of  Congress,  and  for  a  time  in  some  states 
presidential  electors,  by  districts,  the  necessity  arose  for  the  for- 
mation of  additional  districts.  In  the  formation  of  these  dis- 
tricts approximate  equality  of  population  was  generally  con- 
sidered essential,  and  it  was  consequently  necessary  to  form 
new  combinations  of  the  local  governmental  units,  the  towns 
and  counties,  regardless  of  the  existence  of  the  old.  Then  the 
democratization  of  the  state  governments  through  the  direct 
popular  election  of  executive  and  judicial  officers,  the  creation 
of  new  administrative  agencies,  and  the  redistribution  of  popu- 
lation between  city  and  country  caused  a  further  multiplication 
and  complication  of  districts.  At  present,  therefore,  in  addition 
to  the  original  division  of  the  states  into  counties,  towns,  villages, 
and  cities,  there  is  also  a  redivision  into  numerous  overlapping 
legislative,  administrative,  and  judicial  electoral  districts  of 
various  sizes  and  degrees  of  importance. 

The  result  of  the  formation  of  all  these  various  electoral  dis- 
tricts is  the  subdivision  of  the  electorate  into  a  corresponding 
number  of  special  groups  for  the  purpose  of  choosing  the  several 
sorts  of  public  officers  elected  by  the  people.  The  president  of 
Harvard  University,  for  example,  is  one  of  1708  voters  in  his 
ward,  who  elect  two  members  of  the  city  council  each  year.1 
He  is  one  of  the  10,666  voters  in  his  school  district,  nearly  a 
third  of  whom  are  women,  who  elect  a  member  of  the  school 
committee  each  year.  He  is  one  of  8254  voters  in  his  state 
representative  district,  who  elect  three  members  of  the  legisla- 
ture each  year.  He  is  one  of  15,309  voters  in  his  senatorial 
district,  who  elect  one  state  senator  each  year.  He  is  one  of 
22,013  voters  in  his  city,  who  elect  a  mayor,  thirteen  aldermen, 
and  a  variety  of  other  city  officials  each  year.  He  is  one  of 
50,966  voters  in  his  congressional  district,  who  elect  a  member 

1  Written  in  1915.  In  November,  1915,  the  city  charter  was  changed,  and  the 
number  of  local  elective  officials  was  reduced. 


160       STATE  GOVERNMENT  IN  UNITED  STATES 

of  Congress  each  second  year.  He  is  one  of  84,933  voters  in  his 
councillor  district,  who  elect  a  member  of  the  state  executive 
council  each  year.  He  is  one  of  136,50x3  voters  in  his  county 
who  elect  each  year  a  varying  number  of  county  officers,  whose 
terms  run  for  three  or  five  years  as  the  case  may  be.  He  is  one 
of  674,174  voters  in  the  state,  who  elect  six  state  officers  each 
year,  eighteen  presidential  electors  every  fourth  year,  and  two 
United  States  senators  in  the  course  of  each  six  years.  Alto- 
gether he  is  associated  with  nine  different  groups  of  voters, 
ranging  in  number  from  a  couple  of  thousand  to  two-thirds  of  a 
million,  for  the  purpose  of  filling  by  election  between  fifty  and 
sixty  different  offices,  with  different  terms,  different  tenures, 
different  duties,  different  powers,  and  different  requirements  on 
the  part  of  the  officeholder.  In  the  states  where  judges  are 
elected  directly  by  the  people,  the  situation  is  still  more  com- 
plicated.1 

DEFECTS  OF  THE  SYSTEM  OF  ELECTORAL  DISTRICTS 

The  first  characteristic  of  these  various  electoral  districts  is 
their  artificiality.  Where  the  attempt  to  divide  a  state  into 
equal  electoral  districts  is  made  in  good  faith,  it  is  found  to  be 
difficult,  generally  indeed  impossible,  to  make  them  compact  in 
form  and  at  the  same  time  homogeneous  in  substance.  The 
various  local  governmental  units  composing  the  several  districts 
must  be  combined  without  much  regard  to  their  respective 
economic  and  social  conditions  or  previous  habits  of  political 
association  with  one  another.  The  resulting  combinations  often 
lack  the  unity  and  coherence  needful  in  a  group  of  voters  who 
are  to  cooperate  with  one  another  for  the  purpose  of  choosing 
public  officers.  Without  the  consciousness  of  common  interest 
and  common  purpose,  the  group  can  be  nothing  more  than  a 
mere  mass  of  voters,  incapable  of  organic  action,  and  dependent 
on  external  forces  for  the  performance  of  its  proper  function. 

The  second  characteristic  of  the  various  electoral  districts  is 
their  instability.  Not  only  is  the  relationship  between  the 
component  parts  of  a  district  a  casual  one,  but  it  is  also  not 
infrequently  of  short  duration.  Most  electoral  districts  are 

1  See  A.  M.  Kales,  Unpopular  Government,  pp.  26-29. 


THE  STATE  ELECTORATES  161 

created  for  a  limited  period  only,  generally  for  ten  years,  after 
which  there  must  be  a  reapportionment  based  on  the  latest 
census.  In  order  to  make  the  adjustments  required  by  the 
disproportionate  growth  of  population  in  different  localities, 
the  existing  districts  must  be  dissolved,  and  the  local  govern- 
mental units  reasserted  in  new  combinations.  Thus  as  soon  as 
habits  of  political  association  between  the  members  of  an  elec- 
toral group  begin  to  form,  the  group  is  broken  up  and  the  process 
must  be  begun  over  again.1 

The  third  characteristic  of  the  various  electoral  districts  is 
their  unwieldiness.  Sometimes,  to  be  sure,  the  voter  acts  as 
one  of  a  group  of  electors  numbering  only  a  few  hundreds,  who 
can  easily  meet  in  a  single  hall  to  consider  together  the  quali- 
fications of  the  candidates  for  public  office  and  the  merits  of 
the  issues.  More  frequently,  however,  he  is  compelled  to  act 
as  one  of  several  thousands  or  several  hundreds  of  thousands  of 
electors  who  can  never  either  come  into  one  another's  presence 
in  order  to  take  common  counsel  together  or  even  think  of  the 
same  thing  at  the  same  tune.  Under  such  circumstances  only 
the  most  important  offices  will  receive  the  general  attention  of 
the  voters.  Only  the  most  conspicuous  candidates  will  awaken 
a  general  interest.  Only  a  comparatively  few  choices  will  be 
made  deliberately  at  any  one  time.2  Actually,  in  most  states, 
because  of  the  number  and  variety  of  electoral  groups  with 
which  each  voter  is  associated,  his  attention  is  distracted  and 
his  interest  in  the  functions  of  any  particular  group  diminished. 
The  number  and  variety  of  offices  to  be  filled  by  election  in  some 
of  the  districts  still  further  increases  the  distraction  and  dimin- 
ishes the  efficiency  of  the  voter.  The  practice  of  holding  most 

1  For  example,  in  Ohio  the  county  is  generally  the  unit  in  the  formation  of  the 
higher  legislative,  administrative,  and  judicial  electoral  districts,  but  there  is  no 
apparent  attempt  to  maintain  the  same  combination  of  counties  for  different 
electoral  purposes.     Thus,  Licking  county  is  one  of  four  counties  comprising  the 
fifteenth  and  sixteenth  state  senatorial  districts.     It  is  combined  with  four  other 
counties  to  form  the  seventeenth  congressional  district.     It  is  one  of  nine  counties 
forming  the  sixth  common  pleas  judicial  district,  four  of  which  are  counties  not 
associated  with  Licking  county  in  either  of  the  former  districts.     It  is  one  of  fifteen 
counties  in  the  fifth  circuit  judicial  district,  three  of  which  had  not  been  associated 
with  Licking  county  in  any  of  the  preceding  combinations.     Ten  years  ago  these 
combinations  were  different,  and  ten  years  hence  they  will  be  different  again. 

2  See  R.  S.  Childs,  Short  Ballot  Principles. 

K 


162       STATE  GOVERNMENT  IN  UNITED  STATES 

of  the  elections  on  the  same  day,  regardless  of  the  dissimilarity 
in  the  character  of  the  offices  to  be  filled  and  of  the  lack  of  con- 
nection between  the  issues  involved  in  the  various  elections, 
adds  to  the  general  confusion.  In  short,  the  task  imposed  upon 
the  contemporary  American  voter,  acting  through  the  various 
subdivisions  of  the  electorate,  is  unreasonably  heavy  and  un- 
reasonably complex. 

MAJORITY  V.  PLURALITY  ELECTIONS 

Originally  in  several  states  the  burden  of  the  electorate  was 
made  even  heavier  by  the  practice  of  majority  elections.  That 
is,  a  majority  of  all  the  votes  cast  for  the  several  candidates  for 
an  elective  office  was  required  for  election.  If  no  candidate 
received  a  majority  of  the  votes,  there  would  be  no  election, 
and  a  second  election  would  be  called.  At  this  election  the 
voter  would  have  the  same  freedom  of  choice  as  at  the  first, 
and  if  there  were  still  no  choice  by  a  majority  of  the  voters,  the 
process  would  be  repeated  until  some  candidate  should  have 
received  a  majority  of  all  the  votes.  Sometimes  irreconcilable 
differences  among  the  voters  would  prevent  any  choice  what- 
ever, as  formerly  happened  not  infrequently  in  connection  with 
the  choice  of  United  States  senators  by  the  state  legislatures. 
More  commonly,  however,  a  choice  was  made  at  the  first  ballot. 
Second  and  third  ballots  were  the  exception  rather  than  the 
rule  in  normal  times.  Such,  for  example,  was  the  original 
practice  in  Massachusetts,  provided  that  in  case  of  no  election 
of  governor  or  other  officer  chosen  in  the  state  at  large,  the 
second  choice  was  made  by  the  legislature  between  the  two 
candidates  receiving  the  greatest  numbers  of  popular  votes.1 
Under  such  an  electoral  system  the  voters  were  protected  against 
the  possibility  of  the  choice  of  a  candidate  objectionable  to  a 
majority  of  the  voters  by  a  mere  plurality  of  votes  through  the 
dispersion  of  the  votes  of  the  majority  among  a  number  of 
candidates.  This  protection,  however,  was  secured  at  the 
cost  of  two  or  more  trips  to  the  polls  in  case  there  was  no  choice 
at  the  first  ballot,  a  procedure  which  was  sometimes  felt  to  be 
excessively  burdensome,  and  for  this  and  other  reasons  the  prac- 

1  This  system  still  obtains  in  gubernatorial  elections  in  New  Hampshire. 


THE  STATE  ELECTORATES  163 

tice  of  majority  elections  was  abandoned  in  Massachusetts 
shortly  after  the  middle  of  the  nineteenth  century.1 

The  prevailing  system  of  plurality  elections,  however,  despite 
its  appearance  of  greater  simplicity  as  compared  with  the  system 
of  majority  elections,  tends  to  increase  the  complexity  of  the 
electoral  system.  In  order  to  diminish  the  risk  that  a  plurality 
election  will  be  a  minority  election,  objectionable  to  a  majority 
of  the  voters  in  the  district,  like-minded  voters  must  make 
some  preliminary  arrangements  for  concentrating  their  votes 
upon  mutually  acceptable  candidates,  thereby  securing  for 
them  at  the  first  and  only  ballot  as  nearly  as  possible  a  majority 
of  the  whole  number  of  votes.  Voters  do  not  wish  to  throw 
away  their  votes,  as  they  say,  by  casting  them  for  candidates 
who  cannot  win.  They  wish  their  choice  so  far  as  possible  to 
be  effective.  This  purpose  can  be  accomplished  only  by  or- 
ganization in  advance  of  the  election.  Voluntary  associations 
of  voters  will  be  formed  under  any  electoral  system  for  the 
purpose  of  influencing  by  their  joint  action  the  results  of  the 
elections,  but  the  incentive  to  the  formation  of  such  associations 
is  necessarily  greater  under  a  plurality  than  under  a  majority 
system,  because  the  danger  of  the  defeat  of  the  will  of  an  un- 
organized majority  of  the  voters  is  greater  under  such  a  system. 
The  selection  of  the  candidate  who  will  be  supported  by  the 
greatest  number  of  voters  is  equivalent  to  his  election,  and  the 
art  of  politics  has  come  to  consist  fundamentally  in  the  estab- 
lishment and  maintenance  of  electoral  associations  by  means 
of  which  such  candidates  may  be  selected.  The  voter  who 
wishes  to  exert  his  proper  share  of  political  power  must  participate 
in  these  preliminary  selections,  or  as  they  are  commonly  called, 
primary  elections.  If  there  be  only  one  efficient  political  as- 
sociation in  a  district,  the  voters'  task  need  be  no  more  com- 
plicated than  under  a  system  of  majority  elections.  If  there 
be  two  or  more  such  associations,  as  must  normally  be  the  case, 
their  task  is  correspondingly  complicated,  because  each  voter 
must  choose  his  association  before  he  can  share  in  the  selection 
of  candidates. 

The  establishment  of  voluntary  electoral  associations  other 

1  Proceedings  of  Massachusetts  Constitutional  Convention  of  1853.  Record 
of  Debates. 


1 64       STATE  GOVERNMENT  IN  UNITED "  STATES 

than  those  provided  by  the  division  of  the  electorate  into  elec- 
toral districts  is  therefore  the  second  step  in  the  organization 
of  the  electorate.  Under  the  contemporary  system  of  plurality 
elections  the  organization  of  such  associations,  or  political  parties 
as  they  are  termed,  must  be  more  elaborate  than  under  a  system 
of  majority  elections.  The  burden  placed  upon  the  electorate 
by  the  necessity  for  their  organization  and  maintenance  is 
further  enhanced  by  the  number,  artificiality,  instability,  and 
unwieldiness  of  the  electoral  districts  into  which  the  electorate 
is  officially  organized.  It  is  not  without  reason,  therefore,  that 
the  organization  and  activity  of  political  parties  fills  an  ex- 
tremely important  place  in  the  government  of  the  states. 


CHAPTER   VII 
THE  POLITICAL  PARTY 

THE  political  party  has  already  been  denned  as  an  association 
of  voters  united  primarily  for  the  purpose  of  influencing  elections 
to  public  office.  Such  a  definition,  however,  does  not  meet  the 
needs  of  the  situation,  if  the  political  party  is  to  be  formally 
recognized  by  law.  Legal  recognition  of  the  political  party 
implies  the  existence  for  a  group  of  voters  not  only  of  a  common 
purpose,  but  also  of  an  organization,  that  is,  of  a  constitution 
and  rules  of  procedure,  officers,  and  some  practicable  test  of  party 
affiliation.  Moreover,  the  party  should  be  important  enough  to 
deserve  legal  recognition.  There  should  be  a  point  somewhere 
below  which  an  association  of  voters  cannot  fall  without  be- 
coming merely  a  faction  or  a  propagandist  organization.  The 
legal  definition  of  the  political  party  therefore  must  turn  on  the 
record  rather  than  on  the  purposes  of  an  electoral  association. 

LEGAL  DEFINITIONS  OF  PARTY 

As  a  matter  of  fact,  the  political  party,  though  recognized  by 
law  in  almost  all  the  states,  is  not  everywhere  legally  defined. 
In  some  states  it  is  merely  a  group  of  voters  who  name  a  candi- 
date or  ticket  of  candidates  for  public  office  in  compliance  with 
the  procedure  provided  by  law  for  the  printing  of  the  official 
ballots.  The  regulation  of  the  conditions  upon  which  the  names 
of  candidates  may  be  printed  on  the  official  ballot  thus  serves 
practically  as  the  definition  of  the  political  party.  In  all  states 
having  an  official  ballot  the  names  of  candidates  for  election 
may  be  placed  upon  the  ballot  by  petition  of  a  certain  number  of 
voters,  who  thereby  become  at  least  temporarily  a  party.  In 
order  to  become  permanently  a  party,  it  is  necessary  for  the  same 
group  of  voters,  though  not  necessarily  the  same  individuals,  to 

165 


166       STATE  GOVERNMENT  IN  UNITED  STATES 

name  candidates  at  subsequent  elections.  In  order  that  the 
group  may  preserve  its  identity,  it  may  assume  a  name,  and  in 
states  where  illiterates  are  permitted  to  vote,  a  party  em- 
blem. The  desirability  of  protecting  the  proprietors  of  a  party 
name  and  emblem  against  infringement  by  other  groups  of  voters 
has  led  most  states  to  define  the  term  "party"  more  carefully. 
In  these  states,  though  a  party  may  come  into  existence  by 
placing  the  names  of  candidates  for  office  upon  the  official  bal- 
lots, it  can  preserve  its  existence  only  by  casting  not  less  than  a 
certain  number  of  votes  at  the  election.  A  nominating  group 
whose  candidates  fail  to  secure  the  required  number  of  votes 
fails  to  establish  its  status  as  a  party  and  likewise  its  claims  to 
the  exclusive  use  of  a  name  and  emblem.  A  group  which  succeeds 
in  polling  not  less  than  the  required  vote  thereby  becomes  en- 
titled to  the  exclusive  use  of  its  name  and  emblem  at  subsequent 
elections  so  long  as  it  continues  to  satisfy  the  requirements.  In 
the  states  which  have  established  the  direct  primary  system  of 
making  nominations,  there  is  sometimes  a  further  distinction 
between  parties  which  are  required  to  make  their  nominations 
in  the  official  primary  and  those  which  are  free  to  select  their 
candidates  in  other  ways.  The  former,  which  may  be  described 
as  political  parties  proper,  comprise  those  parties  which  poll 
not  less  than  a  certain  number  of  votes.  This  is  always  a  greater 
number  than  that  required  merely  for  recognition  as  a  permanent 
party.  Thus  in  Massachusetts  any  group  of  one  thousand  voters 
may  place  a  ticket  of  candidates  for  offices  filled  by  election  in  the 
state  at  large  on  the  official  ballot  by  signing  petitions  called 
nomination  papers.  If  such  a  group  at  five  successive  annual 
elections  polls  not  less  than  one  thousand  votes,  it  thereby  be- 
comes a  "party"  and  is  thereafter  entitled  to  designate  its 
candidates  without  the  formality  of  filing  special  petitions. 
Certificates  of  nomination,  signed  by  the  proper  party  officers, 
are  accepted  in  lieu  of  nomination  papers.  If  such  a  party  polls 
not  less  than  three  per  cent  of  the  total  number  of  votes  cast, 
however,  it  becomes  a  "political  party"  and  must  thereafter 
make  its  nominations  in  the  official  primaries.  Either  a  "  party  " 
or  a  "political  party"  may  lose  its  official  recognition  by  failure 
to  poll  at  any  election  the  required  number  or  per  cent  of  votes. 
The  technical  distinction  between  a  "party"  and  a  "political 


THE  POLITICAL  PARTY  167 

party, "  established  in  Massachusetts,  is  not  generally  observed ; 
but  the  legal  recognition  of  the  party  because  of  its  ability  to 
poll  not  less  than  a  certain  vote  is  the  general  rule.  In  most 
states  the  size  of  the  vote  required  for  recognition  ranges  from  two 
to  ten  per  cent  of  the  total. 

A  party  therefore  must  be  denned  for  practical  purposes  as 
an  electoral  association  whose  record  entitles  it  to  put  the  names 
of  its  candidates  upon  the  official  ballot  without  the  formality  of 
filing  nomination  papers.  Such  associations  may  be  further 
distinguished  as  major  and  minor  parties  according  to  their 
political  importance.  At  the  present  time  in  most  of  the  states 
the  major  parties  may  be  most  conveniently  defined  as  those 
which  make  their  nominations  at  direct  primary  elections ;  the 
minor  parties,  those  which  nominate  by  the  old  convention 
system. 

PARTY  ORGANIZATION:    CONVENTIONS 

The  organization  of  parties  is  by  no  means  uniform  through- 
out the  country.  The  principal  organ  of  the  party,  however,  is 
generally  the  state  convention.  The  functions  of  the  convention 
so  far  as  they  relate  to  state  politics,  are  (i)  the  adoption  of  a 
constitution  for  the  party  and  rules  of  procedure  so  far  as  not 
provided  by  law,  (2)  the  adoption  of  a  declaration  of  party  prin- 
ciples or  platform,  (3)  the  nomination  of  candidates  for  offices 
to  be  filled  by  the  voters  of  the  state  at  large,  if  not  nominated 
at  the  primaries,  and  in  some  cases,  (4)  the  election  of  permanent 
party  officers.  The  basis  of  representation  in  the  convention  is 
generally  either  the  county  (in  some  states  the  town)  or  the  legis- 
lative district  (where  it  does  not  coincide  with  the  county  or 
town).  Delegates  may  be  apportioned  among  the  counties  or 
districts  either  according  to  population  or  according  to  their 
respective  numbers  of  partisans  as  indicated  by  the  votes  cast 
at  the  last  preceding  election.  As  a  rule  the  delegates  to  con- 
ventions are  specially  chosen  for  the  occasion  and  for  the  most 
part  are  not  themselves  candidates  for  election  to  public  office. 
A  number  of  states,  however,  have  tried  to  simplify  party 
organization  by  providing  that  the  members  of  certain  permanent 
party  committees  shall  compose  the  state  convention  ex  officio. 
Other  states  have  provided  that  the  convention  shall  be  composed 


1 68       STATE  GOVERNMENT  IN  UNITED  STATES 

of  the  candidates  for  governor  and  the  state  legislature  together 
with  hold-over  members  of  the  legislature,  if  any,  and  sometimes 
other  public  officeholders  and  candidates.  Still  other  states 
have  tried  different  combinations  of  these  various  plans.  In 
most  states  the  state  convention  is  a  comparatively  numerous 
body,  comprising  several  times  as  many  delegates  as  there  are 
members  of  the  state  legislature.  In  some,  however,  the  member- 
ship is  small.  In  a  few  states  the  convention  does  not  exist 
under  that  name,  and  its  place  is  taken  by  a  so-called  party 
council,  consisting  of  regularly  nominated  candidates  for  public 
office,  permanent  party  committeemen,  or  both,  meeting  chiefly 
for  the  purpose  of  adopting  a  platform.  The  state  conventions 
generally  meet  in  the  even  years  directly  after  the  primary  elec- 
tions and  remain  in  session  only  one  or  two  days. 

Before  the  establishment  of  the  direct  primary,  conventions 
were  also  held  by  the  major  parties,  and  they  may  still  be  held 
by  minor  parties,  in  each  electoral  district  within  the  state  for 
the  purpose  of  making  nominations  for  all  offices  to  be  filled  by 
election  in  such  district.  These  district  conventions  were  as 
various  in  character  as  the  electoral  districts  themselves,  and 
the  district  convention  system  was  as  complicated  and  unwieldy 
as  the  electoral  district  system.  Delegates  to  the  most  important 
of  the  local  district  conventions,  generally  the  county  convention, 
were  elected  directly  by  the  members  of  the  several  parties  in 
the  party  primaries  or  caucuses.  Delegates  to  the  less  important 
district  conventions  were  generally  chosen  indirectly.  Delegates 
to  a  congressional  district  convention,  for  example,  might  be 
specially  chosen  by  the  several  county  conventions  within  the 
congressional  district,  or  the  delegates  to  the  state  convention 
from  the  counties  within  the  same  congressional  district  might 
serve  ex  qfficio  as  the  congressional  district  convention.  Instead, 
therefore,  of  coming  fresh  from  the  primaries,  the  delegates  to 
many  of  the  district  conventions  and  even  to  the  state  conven- 
tions might  be,  and  frequently  were,  the  delegates  of  delegates, 
and  thus  removed  two  and  in  some  cases  even  three  degrees  from 
the  rank  and  file  of  the  party.  At  each  remove  the  voice  of  the 
rank  and  file  necessarily  becomes  less  distinct,  until  at  last  it 
may  become  so  faint  as  to  be  inaudible.  Under  the  direct  pri- 


THE  POLITICAL  PARTY  169 

mary  system  district  conventions  were  unnecessary  and  were 
generally  abolished. 

PARTY  ORGANIZATION:    COMMITTEES 

The  permanent  organs  of  the  party  are  the  standing  com- 
mittees. The  functions  of  the  committees  are  the  conduct  of 
campaigns  and  the  management  of  partisan  affairs  between  cam- 
paigns. There  must  consequently  be  a  special  committee  for 
each  electoral  district  within  the  state.  The  complication  of 
electoral  districts  in  most  states  produces  a  corresponding  compli- 
cation of  party  committees.  The  committeemen  may  all  be 
chosen  directly  by  the  members  of  the  party  at  the  primary,  or 
more  generally  some  committeemen  may  be  chosen  directly 
and  the  others  indirectly,  either  by  the  local  committeemen  or 
by  the  state  convention  or  otherwise.  A  number  of  states  have 
tried  to  simplify  the  election  of  committees  by  providing  that 
the  committees  for  the  more  artificial  electoral  districts  shall  be 
composed  ex  qfficio  of  members  of  the  committees  for  the  more 
natural  districts.  Thus  a  state  senatorial  district  committee 
may  be  composed  of  the  members  of  the  state  representative 
district  or  county  committees  lying  within  the  senatorial  dis- 
trict. The  committee  for  a  congressional  district  comprising  a 
considerable  number  of  counties  may  be  composed  of  the  chair- 
men of  the  several  county  committees,  or  it  may  be  composed  of 
the  members  of  the  state  committee  representing  the  counties  or 
other  districts  lying  within  the  congressional  district.  The  prac- 
tice varies  greatly  in  different  states,  depending  partly  upon  the 
organization  of  local  government,  and  partly  upon  the  practice 
that  prevailed  before  the  establishment  of  the  direct  primary. 
Small  committees  organize  by  choosing  a  chairman,  a  secretary, 
a  treasurer,  and  such  other  officers  as  may  be  thought  necessary, 
although  in  a  few  states  the  chairmen  of  committees  are  specially 
elected  at  the  primary.  Large  committees,  including  the  state 
central  committees  in  most  states,  also  choose  an  executive 
committee,  or  authorize  their  chairman  to  appoint  an  executive 
committee  to  which  they  delegate  most  of  their  powers.  In  a 
few  states,  however,  the  delegation  of  power  by  one  committee 
to  another  is  prohibited  by  law. 


STATE  GOVERNMENT  IN  UNITED  STATES 

The  permanent  officers  of  the  party  organizations,  that  is,  the 
members  of  the  various  party  committees,  are  technically  the 
officers  of  voluntary  associations.1  They  receive  no  regular 
compensation  for  the  performance  of  their  important  duties,  nor 
is  any  regular  revenue  provided  by  means  of  which  they  may  de- 
fray the  expense  of  maintaining  the  organization  and  conducting 
campaigns.  They  are  generally  chosen  for  fixed  terms  of  two 
or  four  years,  though  local  party  officers  in  a  few  states  and  all 
party  officers  in  Massachusetts  are  chosen  annually,  and,  when 
elected  in  official  primaries,  may  receive  their  credentials  from 
the  public  election  officers.  Yet  they  are  not  themselves  public 
officers,  and  cannot  be  removed  from  office  either  by  impeach- 
ment or  by  other  direct  legislative  or  administrative  action. 
Since  they  are  chosen  for  fixed  terms,  they  cannot  be  removed  by 
any  partisan  body  unless  the  primary  law  or  the  party  constitu- 
tion expressly  so  provides.  Frequently  there  is  no  provision 
for  the  removal  of  party  committeemen  before  the  expiration 
of  their  terms.  Where  there  is  such  provision,  it  makes  the 
tenure  of  the  local  committeemen  dependent  upon  the  good  will 
of  the  majority  of  the  central  committee,  thus  causing  a  degree 
of  centralization  in  the  party  organization  incompatible  with 
the  maintenance  of  local  autonomy  in  party  government.  In 
the  absence  of  any  effective  provision  for  the  removal  of  party 
committeemen  the  control  of  the  party  organization  between 
campaigns  lies  entirely  in  their  hands.  Whether  or  not  it  also 
lies  entirely  in  their  hands  at  all  times  depends  upon  the  nature 
of  the  test  of  party  affiliation,  the  method  of  nominating  candi- 
dates, and  the  manner  of  conducting  primaries  and  conventions. 

The  organization  of  major  parties  not  subject  to  regulation  by 
law  is  less  uniform  than  that  of  those  whose  organization  is 
regulated  by  law.  In  several  of  the  southern  states  the  dominant 
party  has  voluntarily  adopted  the  direct  primary  system  of 
making  nominations  and  provided  all  the  machinery  for  the 
conduct  of  primary  elections.  In  such  states  the  party  constitu- 
tion and  rules  of  procedure  are  almost  as  comprehensive  as  are 
the  election  laws  themselves  in  the  states  where  the  direct  pri- 
mary is  established  by  law.  In  such  a  state  as  South  Carolina, 
for  example,  the  dominant  party  so  completely  dominates  local 

1 F.  J.  Goodnow,  Administrative  Law  of  the  United  States,  pp.  243-253. 


THE  POLITICAL  PARTY  171 

politics  that  the  other  parties  maintain  scarcely  more  than  a 
nominal  organization.  Such  an  organization  may  play  a  part 
in  national  politics,  but  is  negligible  in  connection  with  the  govern- 
ment of  the  state.  The  primary  of  the  dominant  party  practi- 
cally takes  the  place  of  the  official  general  election,  and  the  rules 
for  the  conduct  of  the  primary  are  of  greater  political  importance 
than  the  ostensible  election  law.  In  several  northern  states 
also  the  dominant  party  holds  a  very  strong  position.  There 
the  traditional  convention  system  has  been  retained  by  the  major 
parties,  at  least  for  the  selection  of  candidates  for  offices  to  be 
filled  by  the  voters  of  the  state  at  large,  in  all  states  where  the 
direct  primary  has  not  been  established  by  law.  In  these  states 
there  is  still  a  convention  for  each  electoral  district,  unless  the 
direct  primary,  as  is  the  case  in  a  few  states,  is  specially  estab- 
lished for  certain  localities.  Under  the  traditional  convention 
system  the  members  of  the  various  party  committees  (as  well 
as  the  candidates  for  public  office)  are  usually  chosen  by  the 
conventions.  The  influence  of  the  rank  and  file  upon  the  nomina- 
tion of  most  of  the  candidates  and  the  choice  of  most  of  the  party 
managers  may  at  best  be  very  indirect  and  remote. 

Party  organization  in  the  states  which  still  retain  the  tradi- 
tional convention  system  is  generally  highly  centralized.  The 
supreme  legislative  authority  is  the  state  convention,  and  the 
supreme  executive  is  the  state  central,  or  executive,  committee. 
The  former  makes  the  rules  for  the  conduct  of  primaries  and  the 
procedure  of  local  conventions  and  committees,  so  far  as  it 
chooses,  and  the  state  committee  supervises  their  enforcement. 
Any  dispute  as  to  the  regularity  of  the  proceedings  in  any  pri- 
mary or  convention  or  party  committee  may  therefore  be  ap- 
pealed to  the  state  committee  and  finally  to  the  state  convention. 
But  if  the  state  committee  prepares  the  temporary  roll  of  dele- 
gates to  the  state  convention  and  designates  its  temporary  officers, 
the  balance  of  power  is  likely  to  repose  in  its  hands.  In  short, 
under  the  traditional  convention  system  that  caucus  or  primary 
or  convention,  and  hence  that  nomination  of  candidates  and 
choice  of  party  committeemen,  is  regular  which  is  recognized  by 
the  next  higher  committee  in  the  organization  of  the  party.  In 
case  of  a  legal  controversy  over  a  nomination  and  the  use  of  the 
party  name  on  the  ballot,  the  decisions  of  the  highest  committee, 


STATE  GOVERNMENT  IN  UNITED  STATES 

that  is,  of  the  state  central  or  executive  committee,  will  generally 
be  recognized  by  the  courts  as  final.1  The  extent  of  the  control 
of  the  party  organization  by  the  permanent  committeemen,  as 
in  the  case  of  parties  whose  organization  is  regulated  by  law, 
depends  upon  the  nature  of  the  test  of  party  affiliation  and  the 
character  of  the  nominating  procedure. 

ORGANIZATION  OF  SOCIALIST  PARTY 

The  organization  of  the  minor  parties,  with  one  exception,  is 
less  formal  and  less  elaborate  than  that  of  the  major  parties  and 
requires  no  special  consideration.  The  exception  is  the  Socialist 
party. 

The  Socialist  party  organization  is  substantially  the  same  in 
all  the  states  and  differs  hi  several  important  respects  from  that 
of  the  other  parties.  In  the  first  place,  the  state  convention  has 
no  final  power  to  adopt  a  constitution  and  rules  of  procedure,  but 
may  only  propose  a  constitution  and  rules  or  amendments  thereto 
for  final  adoption  by  the  rank  and  file  of  the  party,  voting  directly 
at  a  party  referendum,  as  it  is  called.  The  platform,  also,  may 
only  be  adopted  provisionally  by  the  state  convention,  subject 
to  final  ratification  by  the  members  of  the  party.  Secondly, 
the  convention  may  nominate  candidates  for  public  office,  but 
the  nominations  are  subject  to  ratification  by  the  membership. 
Thirdly,  the  members  of  the  principal  party  committees  are 
elected  directly  by  the  members  of  the  party,  and  may  be  re- 
called at  any  time  by  a  majority  of  those  voting  on  the  question 
when  submitted  to  the  members.  The  question  of  recall  must 
be  submitted  when  ordered  by  the  requisite  number  of  local 
associations.  Fourthly,  the  local  associations  may  initiate 
amendments  to  the  constitution  and  rules  and  platform,  and  a 
majority  of  the  members  throughout  the  state  voting  thereon  can 
adopt  them.  Thus,  though  the  Socialist  party  organization  is 
as  highly  centralized  as  that  of  any  other  party,  the  acts  of  those 
in  authority  are  subject  to  control  by  the  majority  of  the  mem- 
bers, or  at  least  are  supposed  to  be  subject  to  such  control, 
through  the  operation  of  the  initiative,  referendum,  and  recall. 

The  Socialists  have  not  only  adopted  a  radical  redivision  of 

1  F.  J.  Goodnow,  op.  cit. 


THE  POLITICAL  PARTY  173 

powers  between  the  representative  organs  of  party  government 
and  the  rank  and  file,  they  have  also  made  some  fundamental 
changes  in  the  character  of  party  administration.  The  most 
important  officer  in  the  Socialist  party  organization  is  not  the 
chairman  of  the  state  committee,  as  in  other  parties,  but  the 
state  secretary.  This  officer,  though  usually  elected  directly 
by  the  membership,  is  regarded  as  an  employee  rather  than  as  a 
leader  of  the  party,  and  is  expected  to  devote  all  his  time  to  its 
service.  Instead  of  being  left  to  secure  his  reward  for  party 
service  by  obtaining  election  or  appointment  to  public  office  or 
otherwise,  as  in  other  parties,  he  is  paid  a  fixed  salary.  The 
necessary  funds  for  salaries  and  other  expenses  of  organization 
are  raised  by  the  sale  of  stamps  to  the  members.  These  stamps 
are  furnished  each  month  by  the  national  secretary  to  the  state 
secretaries,  one  for  each  member  of  the  party  in  good  standing 
within  the  state,  at  the  rate  of  five  cents  apiece.  The  state 
secretary  retails  them  to  the  secretaries  of  the  party  locals  at 
ten  cents  apiece.  The  local  secretaries  dispose  of  them  to  mem- 
bers at  twenty-five  cents  each,  or  whatever  they  will  fetch. 
Thus  the  national,  state,  and  local  organizations  are  expected 
to  secure  a  stable  and  regular  revenue  and  the  members  of  the 
party  to  feel  a  personal  interest  in  the  conduct  of  party  affairs 
between  as  well  as  during  the  campaigns.  The  national  secre- 
tary and  several  of  the  state  secretaries  publish  weekly  bulletins 
in  which  the  receipt  and  expenditure  of  the  party  funds  is  ac- 
counted for  and  the  conduct  of  party  affairs  in  general  duly  re- 
corded. The  Socialist  party  organization  is  thus  more  complete 
than  that  of  any  other  party,  for  no  other  party  makes  provision 
for  the  regular  employment  of  paid  officials  and  the  regular  col- 
lection of  membership  dues.  On  paper  it  is  more  democratic 
than  that  of  any  other  party.  Whether  it  is  so  in  fact,  and 
whether  it  is  as  efficient  as  democratic,  are  questions  to  which 
only  experience  can  afford  an  answer. 

TEST  OF  PARTY  AFFILIATION 

The  test  of  party  membership  before  the  legal  recognition  of 
the  political  party  was  generally  left  to  the  discretion  of  the  official 
party  committees.  This  system  still  obtains  in  a  few  states. 


174       STATE  GOVERNMENT  IN  UNITED  STATES 

Thus  in  Rhode  Island 1  the  rules  of  the  Republican  party  provide 
that  town  and  city  committees  shall  be  chosen  biennially  at  the 
caucuses  or  conventions  which  elect  delegates  to  the  state  con- 
vention for  the  nomination  of  a  candidate  for  governor  and  other 
state  officers,  or  at  the  caucuses  or  conventions  for  the  nomina- 
tion of  representatives  to  the  general  assembly.  These  town 
and  city  committees  shall,  when  occasion  requires,  secure  voting 
lists  to  be  used  in  local  Republican  caucuses  and  shall  determine 
what  voters  are  eligible  to  vote  in  such  caucuses.  When  two 
local  caucuses  in  any  town  or  city  claim  to  represent  the  Republi- 
can party,  the  executive  committee  of  the  state  central  committee 
shall  determine  which  one  to  recognize.  Moreover,  the  state 
central  committee  in  its  discretion  may  disqualify  any  one  or 
all  of  the  members  of  a  town  or  city  committee,  and  choose 
others  to  fill  such  vacancies.  The  state  central  committee  is 
elected  biennially  by  the  state  convention,  which  also  elects  the 
state  chairman.  The  latter  appoints  the  state  executive  com- 
mittee. In  this  way  party  management  is  effectively  centralized, 
and  the  supreme  authority  in  party  affairs  is  vested  in  those  who 
control  the  central  organization.  The  right  of  the  individual 
member  of  the  party  to  participate  in  the  government  of  the 
party  and  the  nomination  of  party  officers  and  candidates  is 
dependent  primarily  upon  the  will  of  the  local  party  committee, 
ultimately  upon  that  of  the  officers  of  the  state  organization. 

In  a  few  states,  the  test  of  party  membership,  instead  of  being 
left  to  the  discretion  of  party  officers,  either  local  or  central,  is 
clearly  defined  in  the  party  rules.  Thus  in  South  Carolina 2 
the  rules  of  the  Democratic  party  provide  that  the  applicant  for 
membership  in  the  party  must  be  a  white  Democrat,  or  a  negro 
who  voted  for  General  Hampton  in  1876  and  has  voted  the  Demo- 
cratic ticket  continuously  since  then.  No  white  man,  however, 
may  be  excluded  from  the  party  because  of  his  political  opinions, 
provided  that  he  pledges  himself  to  support  the  candidates  to 
be  nominated  at  the  primary  in  which  he  wishes  to  take  part. 

1  Rules  of  the  Republican  State  Central  Committee  of  R.  I.,  adopted  Nov. 
28,  1911. 

2  Constitution  of  the  Democratic  Party  of  South  Carolina,  as  adopted  in  State 
Convention  at  Columbia,  S.  C.,  May  15,  1912,  and  Rules  Governing  the  Member- 
ship of  Democratic  Clubs,  the  Qualification  of  Voters  and  the  Conduct  of  Primary 
Elections  of  the  Democratic  Party  of  South  Carolina,  adopted  May  15,  1912. 


THE  POLITICAL  PARTY  175 

No  negro,  on  the  other  hand,  may  vote  in  a  Democratic  primary 
unless  he  produces  a  written  statement,  signed  by  ten  "repu- 
table" white  men,  who  shall  swear  that  they  know  of  their  own 
knowledge  that  the  applicant  has  voted  the  Democratic  ticket 
continuously  since  1876.  In  other  words,  the  test  of  party 
membership  is  mainly  one  of  race.  In  South  Carolina,  as  in 
Rhode  Island,  the  enforcement  of  the  test  is  vested  primarily  in 
the  local  party  committee,  subject  to  appeal  to  the  state  execu- 
tive committee. 

The  Socialist  party  has  adopted  the  most  stringent  test  of  party 
affiliation.  The  voter  who  would  be  accepted  as  a  "comrade" 
must  first  sign  the  party's  official  declaration  of  faith,  and  there- 
after he  must  regularly  pay  his  party  dues.  Failure  to  observe 
the  constitution  and  rules  of  the  party  will  entail  expulsion  from 
the  organization,  and  failure  to  pay  the  dues  will  be  punished  by 
suspension  from  the  privilege  of  participation  in  the  government 
of  the  party.  The  test  of  membership  in  the  Socialist  party, 
however,  is  not  arbitrary  and  contingent  upon  the  good  will  of 
the  officers  of  the  organization,  as  is  the  case  of  such  an  organiza- 
tion as  that  of  the  Rhode  Island  Republicans,  and  it  is  not  dis- 
criminatory against  any  class  of  persons  (except  those  who  do 
not  believe  in  the  "class  war"),  as  in  the  case  of  the  Democratic 
organization  in  South  Carolina.  It  is  a  test  defined  by  the 
supreme  representative  organ  of  the  party,  subject  to  the  ex- 
press approval  of  the  majority  of  the  members,  and  embodied  in 
a  known  and  fixed  rule.  The  number  of  persons  regularly  en- 
rolled in  the  party  organization  as  dues-paying  members  is, 
however,  only  a  small  proportion  of  those  who  support  the  party 
tickets  at  the  polls.  In  general  the  party  enrolment  ranges  be- 
tween five  and  twenty  per  cent  of  the  party  vote.  There  is  no 
evidence  that  the  number  of  persons  enlisted  in  the  organizations 
of  other  minor  parties  is  any  greater  than  in  the  case  of  the 
Socialists,  although  the  requirement  of  financial  support  from 
the  rank  and  file  is  made  by  no  other  party.  Indeed,  there  is 
no  evidence  that  the  number  of  partisans  actively  enlisted  in 
the  organizations  of  any  of  the  parties,  major  or  minor,  is  greater 
than  five  to  twenty  per  cent. 

Since  the  legal  recognition  of  the  political  party,  the  test  of 
party  membership  has  often  been  fixed  by  the  law  of  the  state. 


STATE  GOVERNMENT  IN  UNITED  STATES 

This  is  now  the  general  rule  in  the  states  in  which  the  system  of 
direct  nomination  at  primary  elections  has  been  substituted  by 
law  for  the  delegate  convention  system.  The  tests  established 
by  law  are  of  two  kinds.  They  may  be  based  upon  the 
voters'  past  political  affiliations,  or  they  may  be  based  upon 
their  intentions  with  respect  to  political  affiliations  in  the 
future.  In  the  former  case,  the  law  may  be  satisfied  with  a 
mere  declaration,  unsupported  by  proof,  that  the  voter  has  in 
the  past  generally  supported  the  candidates  of  the  party  of  his 
choice.  Wherever  the  secret  ballot  is  established  at  general 
elections,  such  a  test  is  practically  no  more  effective  in  excluding 
undesirable  persons  from  a  party  than  a  test  based  on  a  mere 
declaration  of  intent  to  support  the  party's  candidates  in  the 
future.  By  either  test  such  a  voter  is  free  to  decide  for  himself 
at  the  time  of  the  primary  with  which  party  he  will  affiliate  for 
the  time  being,  and  with  either  test  the  system  is  rightly  de- 
scribed as  one  providing  for  an  open  primary.  At  present  the 
open  primary  system  is  established  in  about  half  of  the  states 
in  which  the  direct  primary  has  been  made  mandatory  by  law. 
In  some  of  these  states,  however,  the  voter  selects  his  party 
ballot  in  secret  at  the  primary  and  his  party  affiliation  conse- 
quently may  not  be  publicly  known,  unless  he  chooses  to 
reveal  it. 

The  alternative  to  an  open  primary  is  one  in  which  the  primary 
of  each  party  is  effectively  closed  to  all  except  bona  fide  mem- 
bers of  the  party  in  good  standing  for  some  definite  period  of 
time.  A  closed  primary  system  is  most  effectively  established 
by  requiring  that  all  those  who  would  take  part  in  mak- 
ing partisan  nominations  must  be  publicly  enrolled  in  ad- 
vance. In  Massachusetts,  under  the  primary  law  of  1911, 
the  voter  became  enrolled  simply  by  attending  a  primary  elec- 
tion and  voting  with  some  recognized  political  party.  There- 
after, so  long  as  he  should  regularly  attend  the  primaries,  he 
remained  a  member  of  that  party,  unless  he  went  before  the  town 
or  city  clerk  or  election  commissioners  at  least  ninety  days  be- 
fore the  date  of  the  primary  election  at  which  he  should  desire 
to  affiliate  with  a  different  party,  and  requested  that  the  desired 
change  be  made  in  his  official  enrolment.  In  New  York  and 
most  states  requiring  an  official  party  enrolment,  the  voter  is  re- 


THE  POLITICAL  PARTY 


177 


quired  to  designate  his  party  affiliation  when  he  registers,  and 
from  the  registrars'  records  the  lists  of  enrolled  party  voters 
are  made  up  for  the  ensuing  year.  Either  of  the  above-described 
systems  of  party  enrolment  presents  an  effective  barrier  to  un- 
premeditated changes  of  party  membership  during  the  heat  of  a 
political  campaign. 


THE  BIPARTISAN   SYSTEM 

The  results  of  the  official  enrolment  of  partisans  in  the  states 
which  provide  for  party  enrolment  illustrate  the  strength  and 
character  of  the  party  system  in  American  politics.  The  follow- 
ing are  typical. 


NAME  or  PARTY 

NEW  YORK 
1914 

CALIFORNIA 
.'914 

OREGON 
1912  j 

Republican    

636,4.0? 

388  985 

TO?  OsO 

Democratic   

6ce  04.  7 

206,146 

1A  6?O 

Progressive    

76,818 

1  84.,  6  7  "\ 

I   1  1A. 

Prohibition    

20,119 

28,199 

2  285 

Socialist    

20,061 

TO,  741 

6  768 

Miscellaneous     

9,280 

1,  60  1 

1,988 

Independent       

408 

4,708 

Refused  to  state  party  affiliation 

339,625 

70,041 

2,387 

Total  registration  prior  to  gen- 
eral election    

1,767,264. 

930.886 

i  <J9,888 

In  each  state  it  is  evident  that  the  great  majority  of  the  voters 
are  partisans.  In  New  York  more  than  four-fifths  of  the  voters 
indicated  their  party  affiliation ;  in  California,  more  than  nine- 
tenths  ;  and  in  Oregon,  where  the  system  of  party  enrolment  has 
been  longest  in  operation,  less  than  five  per  cent  of  the  registered 
voters  declared  themselves  to  be  independent  of  party,  or  unwill- 
ing to  state  their  party  affiliation,  if  any.  Not  only  are  the 
great  majority  of  the  voters  partisans,  but  also  the  great  majority 
of  them  belong  to  one  or  the  other  of  the  two  major  parties.  In 
New  York  nearly  three-fourths  of  the  registered  voters  are  en- 
rolled Republicans  or  Democrats;  in  California,  nearly  two- 
thirds;  and  in  Oregon,  more  than  seven-eighths.  The  number 

N 


178       STATE  GOVERNMENT  IN  UNITED  STATES 

of  organized  parties  in  the  states  ranges  from  four  to  six,  but  it 
is  seldom  that  more  than  two  of  them  are  of  major  political  im- 
portance. In  a  considerable  number  of  states,  including  most 
of  those  of  the  South,  a  large  majority  of  the  voters  profess  to 
belong  to  a  single  party,  as  in  Oregon. 

The  official  party  enrolments,  however,  do  not  show  the  num- 
ber of  partisans  actively  enlisted  in  the  party  organizations. 
The  most  important  work  of  the  parties  is  the  making  of  nomina- 
tions, but  examination  of  the  primary  election  returns  in  different 
states  reveals  the  fact  that  there  is  no  uniformity  in  the  attend- 
ance of  partisans  at  the  primaries  of  their  respective  parties. 
The  extent  to  which  partisans  affiliated  with  the  major  organiza- 
tions actively  participate  in  the  making  of  nominations  depends 
upon  the  political  importance  of  their  party  and  varies  with  the 
chances  for  the  success  of  their  candidates  at  the  general  elec- 
tions. Where  election  is  certain^  as  in  the  case  of  the  Demo- 
cratic candidates  in  many  southern  states,  the  attendance  of 
partisans  at  the  primaries  is  usually  larger  than  at  the  general 
elections.  It  is  often  proportionately  as  large  as  the  attendance 
of  all  voters  at  the  general  elections  in  states  where  the  issue  is 
doubtful.  Where  defeat  is  certain,  the  attendance  at  the  pri- 
maries is  commonly  small,  sometimes  so  small  as  to  be  merely 
nominal.  When  neither  election  nor  defeat  is  certain,  the  re- 
sults are  various,  depending  mainly  upon  the  personality  of  the 
candidates  for  nomination  and  the  closeness  of  the  contests 
between  them. 

The  official  returns  of  primary  elections  further  show  that  party 
ties  rest  lightly  upon  a  considerable  proportion  of  the  voters. 
Whilst  in  Oregon,  for  example,  two-thirds  of  all  the  voters  are 
enrolled  Republicans,  and  have  been  such  ever  since  the  adoption 
of  the  system  of  party  enrolment  in  1904,  they  have  nevertheless 
chosen  two  Democratic  governors  and  two  Democratic  United 
States  senators  during  this  period,  and  cast  the  electoral  vote 
of  the  state  once  for  the  Democratic  candidate  for  the  presidency. 
Either  many  voters  are  Republicans  mainly  for  the  purpose  of 
participating  in  the  Republican  primaries,  since  Republican 
nominations  are  usually  much  more  important  than  those  of 
any  other  party,  or  else  partisan  principles  are  frequently  sub- 
ordinated at  the  polls  to  other  considerations  of  a  personal,  or, 


THE  POLITICAL  PARTY  179 

at  least,  non-partisan  character.  The  same  conditions  exist 
in  most  northern  states  in  which  one  of  the  major  parties  is 
much  more  numerous  than  the  other.  In  the  close  states,  on 
the  other  hand,  party  ties  seem  in  general  to  be  less  lightly  re- 
garded by  the  voter.  The  evidence  indicates,  however,  that  the 
strongest  motive  impelling  a  considerable  number  of  voters  to 
become  partisans  is  the  desire  to  make  their  votes  count  for  as 
much  as  possible,  rather  than  an  enduring  loyalty  to  any  par- 
ticular party  creed  or  organization.  What  attracts  them  to 
the  primary  is  not  the  spirit  of  partisanship,  but  the  opportunity 
which  the  primary  system  affords  of  choosing  twice  among  the 
candidates  for  office.  Such  voters  are  partisans  chiefly  in  name. 

CHARACTER  OF  SYSTEM 

The  existing  partisan  system,  regarded  as  a  system  of  organiz- 
ing the  electorate,  is,  like  the  system  of  electoral  districts,  an 
artificial  creation.  The  party  organizations  which  are  recognized 
by  law  for  the  purpose  of  making  nominations  for  state  offices 
are  also  recognized  for  the  purpose  of  making  nominations  for 
federal  offices.  The  same  has  been  true  as  to  local  offices ;  but 
in  this  field  a  contrary  tendency  has  recently  appeared.  Where 
official  party  enrolment  is  provided  for,  the  same  enrolment 
serves  as  the  basis  for  participation  in  the  state  and  federal 
primaries,  and  in  many  localities  also  for  the  local  primaries. 
State  and  federal  primaries  generally,  with  the  exception  of  the 
presidential  primaries,  and  local  primaries  less  generally,  are 
held  on  the  same  day.  Thus  the  same  partisan  system  which  is 
employed  for  the  organization  of  the  state  electorates  is  made  to 
serve  the  purposes  of  the  voters  in  federal  politics,  and  in  many 
cases  in  local  politics  also.  State,  federal,  and  local,  legislative, 
executive,  and  judicial  nominations  are  all  made  by  the  same 
electoral  associations.  But  where  the  same  party  organizations 
represent  the  same  groups  of  voters  in  the  selection  of  so  many 
different  candidates,  there  inevitably  ensues  a  great  confusion 
of  ideas.  State,  federal,  and  local  issues,  legislative,  administra- 
tive, and  judicial  issues,  are  by  no  means  identical.  There  are 
usually  at  least  two  sides  to  each  issue,  and  the  chances  that  any 
large  number  of  voters  will  be  on  the  same  side  all  along  the  line 


i8o        STATE  GOVERNMENT  IN  UNITED   STATES 

of  issues  are  not  very  great.  In  order  that  an  electoral  asso- 
ciation of  the  existing  American  type  may  have  a  fair  prospect 
of  success  at  the  polls,  each  member  must  subordinate  many  of 
his  personal  views  for  the  sake  of  joining  his  party  associates  on 
common  ground.  Party  organization  necessarily  involves  some 
compromise  of  private  opinions  in  the  interest  of  agreement  upon 
a  general  program,  and  under  the  existing  conditions  in  American 
politics  it  involves  an  unparalleled  degree  of  such  compromise. 
The  confusion  of  issues  and  compromise  of  opinions  inherent  in 
the  established  party  system  has  unfortunate  consequences  on 
the  operation  of  the  system  in  the  states.  In  the  first  place,  the 
importance  of  principles  of  any  kind  in  the  actual  conduct  of 
party  government  is  unduly  diminished.  The  difficulty  of  singling 
out  the  paramount  issue  in  a  campaign  and  securing  the  support 
of  the  whole  party  upon  that  issue  stimulates  an  overemphasis 
of  the  other  features  of  party  association,  the  local  prejudices, 
the  private  and  special  interests,  the  purely  personal  loyalties, 
the  evil  consequences  of  party  irregularity.  The  taking  of 
sides  upon  important  issues  is  avoided  as  far  as  possible.  Plat- 
forms tend  to  become  an  inscrutable  compound  of  undisputed 
generalities,  trivial  details,  and  vague  promises.  If  issues  must 
be  faced,  it  is  usually  easier  for  a  major  party  to  be  obstructive 
than  constructive.  A  recent  writer  has  justly  observed  :  "Their 
[the  two  leading  parties]  success  as  partisan  organizations  de- 
pends on  the  willingness  of  their  members  [that  is,  those  who  are 
not  merely  nominal  members]  to  sacrifice  individual  convictions  in 
the  interests  of  party  unity.  The  party  is  to  them  a  very  real 
and  valuable  thing,  whose  preservation  is  worth  the  subordination 
of  their  private  opinions.  Republicans  and  Democrats  are  held 
together  more  by  personal  loyalty,  by  the  habit  of  association, 
by  common  interests,  and  by  the  fear  of  the  consequences  of  inde- 
pendence, than  by  common  convictions.  Every  party  whose 
chief  purpose  is  to  control  the  government  must  be  bound  to- 
gether by  a  cement  of  this  kind."  l  Indeed,  a  great  and  successful 
party  becomes  a  political  entity,  a  being  with  a  separate  exist- 
ence of  its  own,  with  a  character  to  maintain,  a  personality  to 
inspire,  a  destiny  to  fulfill.  A  party  without  principles  would  be 
a  mean  and  unlovely  and,  in  the  long  run,  ineffective  creature, 
1  The  New  Republic,  Aug.  14,  1915,  p.  30. 


THE  POLITICAL  PARTY  181 

but  it  takes  more  than  principles  to  make  a  party.  It  is  not 
surprising,  therefore,  that  many  who  describe  themselves  as 
partisans  hold  their  party  ties  lightly.  Men  of  the  highest  prin- 
ciples and  men  of  no  principle  at  all  make  poor  partisans. 

Secondly,  the  issues  which  in  practice  are  most  likely  to  be  com- 
promised for  the  sake  of  party  solidarity  are  those  peculiar  to  the 
states.  This  is  clearly  indicated  by  the  results  of  the  elec- 
tions. Viewing  the  Union  as  a  whole,  the  two  leading  parties 
divide  the  voters  with  extraordinary  evenness,  and  have  done  so 
with  some  temporary  interruptions  for  a  long  period  of  years. 
No  candidate  for  the  presidency  has  ever  succeeded  in  gaining 
the  support  of  as  many  as  three  voters  out  of  five.  The  most 
sweeping  presidential  victories  were  those  of  Lincoln  in  1864, 
Grant  in  1872,  Jackson  in  1828,  and  Roosevelt  in  1904.  The 
last,  who  received  the  largest  proportion  of  the  popular  vote 
ever  cast  for  any  candidate,  received  only  56.4  per  cent  of  the 
total  vote.  On  the  other  hand,  through  the  division  of  the 
opposition,  Wilson  was  elected  in  191 2  with  43  per  cent  of  the  total 
vote,  and  Lincoln  was  elected  in  1860  with  only  39.9  per  cent. 
In  order  to  avoid  such  minority  elections  most  voters  normally 
support  at  presidential  elections  the  candidates  of  one  of  the 
two  leading  parties.  Ordinarily  the  successful  candidate  for  the 
presidency  polls  between  48  per  cent  and  52  per  cent  of  the  popu- 
lar vote,  and  the  leading  unsuccessful  candidate  not  less  than  40 
per  cent  to  45  per  cent.  Since  the  final  establishment  of  the 
national  convention  in  1840,  there  have  been  only  four  presiden- 
tial elections  at  which  more  than  two  parties  have  had  votes  in 
the  electoral  college.  Ordinarily  no  minor  party  can  carry  a 
state.  But  any  equally  even  division  of  the  voters  in  the  several 
states  does  not  exist.  There  are  eleven  southern  states  which 
the  Democrats,  since  the  suppression  of  the  negro  vote,  have 
never  failed  to  carry  for  their  candidate  for  president.  There 
are  an  equal  number  of  northern  and  western  states  which  the 
Republicans,  during  the  same  period  until  the  split  in  the  party 
in  1912,  never  failed  to  carry  for  their  candidate  for  president. 
That  is  to  say,  federal  issues  must  be  generally  deemed  more 
important  than  state  issues,  or  at  least  the  choice  of  federal 
officers  must  be  regarded  as  more  important  than  the  choice  of 
state  officers.  Were  it  otherwise,  the  state  electorates  rather 


i82        STATE   GOVERNMENT  IN  UNITED   STATES 

than  that  of  the  Union  as  a  whole  would  be  evenly  divided 
by  the  parties,  for  the  major  party  organizations  are  created 
to  win  elections,  especially  the  most  important  elections,  and 
an  electoral  association  which  desires  to  win  will  not  remain  in 
a  permanent  minority  in  a  state  unless  its  members  regard  state 
issues  as  of  secondary  importance. 

The  subordination  of  state  issues  in  the  interests  of  party 
solidarity  increases  the  artificiality  of  the  partisan  system  as  it 
operates  in  the  states.  The  members  of  a  major  political  or- 
ganization in  a  state  may  have  little  or  no  basis  for  common 
action,  so  far  as  state  issues  are  concerned,  and  different  factions 
within  the  party  in  a  state  may  be  more  widely  separated  from 
one  another  on  state  issues  than  from  the  opposition.  Under 
such  circumstances  more  important  issues,  so  far  as  the  state  is 
concerned,  may  be  at  stake  in  primary  elections  than  in  the 
general  elections.  Such  indeed  is  the  case  in  all  states  where 
one  of  the  major  parties  dominates  state  politics.  Moreover, 
in  such  states,  since  the  party  nomination  for  state  office  is  ordi- 
narily equivalent  to  election,  the  members  of  the  minority  party 
are  excluded  from  any  effective  share  in  the  government  of  the 
state.  Since  the  control  of  the  nominating  machinery  in  the 
dominant  party  will  give  control  of  the  general  elections,  those 
members  of  the  dominant  party  who  control  the  nominating 
machinery  may  control  the  government  of  the  state.  In  the 
states  where  the  major  parties  are  more  evenly  matched,  the 
control  of  the  nominating  machinery  in  both  parties,  if  held  by 
politicians  willing  to  work  together,  may  likewise  give  practical 
control  of  the  government  of  the  state.  In  such  states  the  mem- 
bers of  both  parties  may  be  practically  excluded  from  any  effective 
share  in  the  government  of  the  state,  if  they  are  excluded  from 
effective  participation  in  the  nominating  process.  Whether  the 
majority  of  a  party  may  be  so  excluded  depends  upon  the  nature 
of  the  nominating  process  and  the  purposes  of  the  permanent 
party  officers. 

WORKING  OF  CONVENTION  SYSTEM 

Under  the  delegate  convention  system  the  process  of  nomina- 
tions was  such  as  to  facilitate  the  control  of  the  nominating  machin- 
ery by  the  active  members  of  the  party  organizations.  The  test 


THE  POLITICAL  PARTY  183 

of  party  affiliation  was  framed  and  applied  by  the  regular  party 
committees,  and  participation  by  the  rank  and  file  in  the  pri- 
maries and  caucuses  was  consequently  more  or  less  contingent 
upon  the  favor  of  their  official  leaders.  Partisans  rarely  voted 
directly  for  the  candidates  of  their  choice,  and  consequently 
could  express  their  preference  only  through  the  medium  of  dele- 
gates to  the  conventions.  If  all  genuine  members  of  a  party, 
and  no  others,  were  admitted  to  a  primary,  if  the  primary  were 
honestly  conducted  and  a  correct  return  made  of  the  votes  cast 
therein,  if  the  delegates  to  the  conventions  were  loyal  to  their 
pledges,  or,  in  case  they  had  made  no  pledges,  were  sincerely 
desirous  of  nominating  the  best  candidates,  and  if  the  conventions 
were  honestly  conducted,  the  process  of  nomination  was  likely 
to  represent  the  will  of  the  majority  of  the  party.  But  if  the 
primaries  and  conventions  were  conducted  arbitrarily  and  un- 
fairly, the  wishes  of  the  rank  and  file  would  have  little  influence 
upon  the  result.  In  practice,  the  permanent  party  committee- 
men  not  only  judged  the  qualifications  of  participants  in  the 
primaries,  but  also  prepared  the  slates  of  delegates  to  the  con- 
ventions, conducted  the  primary  elections,  passed  provisionally 
upon  contests  between  rival  slates  of  delegates  for  the  credentials, 
made  up  the  temporary  rolls  of  accredited  delegates,  selected 
the  temporary  officers,  and  arranged  for  the  permanent  organi- 
zation of  the  conventions.  Under  these  circumstances,  it  is 
not  surprising  that  the  rank  and  file  were  often  unable  to  pre- 
vent the  nomination  of  candidates  to  whom  the  majority  were 
strongly  opposed. 

The  true  character  of  the  process  of  nomination  under 
the  delegate  convention  system  was  recognized  almost  from  the 
beginning.  John  C.  Calhoun,  writing  in  1844,  declared:  "The 
further  the  convention  is  removed  from  the  people,  the  more 
certainly  the  control  will  be  placed  in  the  hands  of  the  interested 
few.  ...  At  each  successive  remove  the  voice  of  the  people 
will  become  less  full  and  distinct,  until  at  last  it  will  become  so 
faint  and  imperfect  as  not  to  be  audible."  l  The  existence  of  the 
two-party  system  in  national  politics  made  the  position  of  the 

1  From  his  statement  refusing  to  permit  his  name  to  be  presented  to  the 
Democratic  national  convention  at  Baltimore  in  1844  as  a  candidate  for  the 
presidency. 


184       STATE  GOVERNMENT  IN  UNITED  STATES 

professional  party  managers  almost  impregnable,  so  long  as  the 
process  of  nomination  remained  unchanged.  If  unscrupulous 
party  committeemen  chose  to  disregard  or  defeat  the  will  of  the 
rank  and  file,  the  theoretical  check  upon  their  abuse  of  power  was 
to  "bolt"  the  nominations  and  support  other  candidates  at  the 
polls.  But  such  a  course  meant  the  desertion  of  the  party,  at 
least  temporarily,  and  in  the  period  before  the  introduction  of 
the  secret  ballot  might  have  caused  the  forfeiture  of  all  claims  to 
participate  in  future  nominations.  Where  the  nominations  of 
both  parties  were  made  without  due  regard  for  the  preferences  of 
the  majority  of  their  members,  a  "bolt"  from  one  party  to  the 
other  would  have  been  futile.  The  organization  of  an  independ- 
ent party  on  short  notice  was  impracticable,  except  in  local 
campaigns.  Though  an  independent  party  could  be  organized 
on  a  national  scale,  if  time  were  permitted,  it  could  not  become 
of  major  importance  without  displacing  one  of  the  existing  major 
parties.  So  long  as  the  bipartisan  system  prevailed,  and  the 
process  of  nomination  remained  as  established  under  the  delegate 
convention  system,  the  principal  check  upon  the  conduct  of 
affairs  by  the  active  members  of  the  party  organizations  was 
in  practice  their  own  sense  of  responsibility  to  their  followers. 

THE  PARTY  MACHINE 

The  permanent  party  officers  were  not  without  a  motive  for 
seeking  to  control  the  nominations.  In  the  first  place,  control 
of  the  nominating  machinery  enabled  those  who  held  the  con- 
trol, the  "machine"  as  they  may  be  described,  to  dispose  of  the 
nominations  for  private  gain.  This  gain  might  take  the  form  of 
advancement  of  their  personal  political  fortunes,  or  it  might  even 
take  the  form  of  money.  In  some  cases,  particularly  in  the  case 
of  the  more  conspicuous  offices,  payment  for  nominations  might 
be  made  under  the  guise  of  contributions  to  campaign  funds. 
In  the  case  of  less  conspicuous  offices,  such  as  minor  places  on 
the  state  ticket,  and  minor  administrative  and  judicial  nomina- 
tions, the  sale  and  purchase  of  nominations  could  be  more  open. 
In  some  states  at  certain  periods  such  disposition  of  nominations 
was  brazen.1  Occasionally  vendors  of  nominations  have  been 

1  See  W.  M.  Ivins,  Machine  Politics  and  Money  in  Elections  in  New  York  City 
(New  York,  1887). 


THE  POLITICAL  PARTY  185 

convicted  of  corruption  in  the  courts.  Convictions,  however, 
for  obvious  reasons,  could  hardly  be  expected  in  the  greater  pro- 
portion of  the  cases.  There  can  be  no  question  that  the  deliberate 
sale  of  a  nomination  for  money  is  corrupt,  but  the  line  is  not  easy 
to  draw  between  a  proper  and  an  improper  disposal  of  nomina- 
tions, not  for  money,  but  for  the  advancement  of  the  political 
interests  of  the  members  of  the  "machine."  Personal  and  party 
success  in  such  cases  easily  become  identified,  and  a  disposition 
of  nominations  in  such  a  way  as  to  advance  the  fortunes  of  the 
party  and  incidentally  of  the  party  managers  is  less  open  to 
criticism,  at  any  rate  so  long  as  the  party  is  regarded  as  a  private 
association,  and  its  managers  are  left  to  their  own  devices  to 
secure  compensation  for  the  undoubted  services  they  are  required 
to  perform.  It  is  often  said  that  party  managers  and  workers 
should  be  public-spirited  enough  to  perform  their  party  duties 
without  compensation,  but  such  a  point  of  view  overlooks  the 
fact  that  much  of  the  work  connected  with  the  conduct  of  party 
affairs  and  the  getting  out  of  the  vote  on  election  day  is  menial 
drudgery,  demanding  heavy  sacrifices  of  time  and  effort,  and 
offering  little  compensation  in  the  way  of  public  honors  or  esteem. 
Secondly,  control  of  the  nominations  enables  the  "machine" 
to  influence  the  public  conduct  of  those  officials  who  owe  their 
nominations  to  "machine"  support  in  the  primaries  or  conven- 
tions. By  using  such  influence  with  members  of  a  state  legis- 
lature, the  "machine"  can  promote  or  obstruct  the  enactment  of 
legislation  desired  or  opposed  by  private  interests  to  whom  the 
members  of  the  "machine"  may  be  indebted  for  political  or 
personal  favors.  Tax  exemptions  or  appropriations,  or  fran- 
chises or  other  special  legislation,  if  not  prohibited  by  the  state 
constitution,  and  special  consideration  in  connection  with  public 
general  legislation,  are  the  not  infrequent  objects  of  such  influence. 
By  using  such  influence  with  administrative  officials  the 
"machine"  can  affect  the  appraisal  or  assessment  of  property, 
the  awarding  of  contracts,  the  inspection  of  machinery  and 
buildings,  and  the  enforcement  of  law  generally.  By  using  such 
influence  with  the  judiciary  the  "machine"  can  affect  appoint- 
ments to  receiverships,  masterships,  rcfereeships,  and  so  forth, 
and  in  general  it  can  affect  the  use  of  the  power  of  appointment  to 
office  and  the  distribution  of  the  public  patronage.  A  "machine  " 


i86       STATE  GOVERNMENT  IN  UNITED  STATES 

may  include  a  large  number  of  active  politicians,  but  in  general 
on  important  questions  of  "machine"  or  party  policy  the  advice 
of  a  few  of  the  more  experienced  leaders  is  followed.  If  there 
be  some  one  among  these  whose  advice  is  especially  valued,  that 
one  is  commonly  described  as  a  "boss."  There  has  been  much 
indiscriminate  abuse  of  "bosses"  in  American  politics,  but  there 
is  a  clear  necessity  for  discrimination  between  good  and  bad 
"bosses."  The  distinction  indeed  is  similar  to  that  drawn  many 
centuries  ago  by  Aristotle  between  the  good  king  and  the  bad 
king  or  tyrant.  The  good  king  was  a  leader  whose  power  was 
exercised  for  the  common  welfare.  The  tyrant  was  one  whose 
power  was  exercised  for  private  ends.  In  fact  the  line  between 
the  two  was  not  always  easy  to  draw,  for  many  rulers  showed 
a  mixture  of  the  good  and  the  bad.  It  is  the  same  with  the 
modern  "boss."  If  the  word  must  be  used  only  in  a  bad  sense, 
it  should  be  understood  that  those  who  have  the  power  of  a 
"boss"  may  use  it  for  public  as  well  as  private  ends,  and  if  they 
use  it  chiefly  for  public  ends  are  entitled  to  a  better  name. 

FAILURE  OF  CONVENTION  SYSTEM 

Under  the  delegate  convention  system,  however,  the  business 
of  party  management  too  often  fell  into  the  hands  of  professional 
politicians  intent  rather  upon  personal  gain  than  upon  the  promo- 
tion of  the  common  welfare.  In  any  state  where  one  of  the  major 
parties  dominated  the  political  situation,  if  the  party  itself  was 
dominated  by  self-seeking  professional  politicians,  the  govern- 
ment of  the  state  likewise  tended  to  become  vested  in  the  hands 
of  the  "machine."  Where  the  major  parties  were  more  evenly 
matched  in  state  politics,  the  voters  at  least  had  a  choice  of 
evils,  and  consequently  a  somewhat  more  effective  position  in 
the  conduct  of  party  and  public  affairs.  The  situation  that  could 
exist  in  a  boss-ridden  state  has  been  vividly  described  by  no  less 
a  person  than  the  president  of  the  late  constitutional  convention 
in  the  state  of  New  York  in  a  speech  before  that  body.1  "What 
is  the  government  of  this  state?  What  has  it  been  during  the 
forty  years  of  my  acquaintance  with  it?  The  government  of 
the  constitution  ?  Oh,  no.  ...  From  the  days  of  Fenton,  and 

1  Elihu  Root,  Speech  in  New  York  Constitutional  Convention,  Aug.  30,  1915. 


THE  POLITICAL  PARTY  187 

of  Conkling,  .  .  .  down  to  the  present  time  the  government  of 
the  state  has  presented  two  different  lines  of  activity,  one  of 
the  constitutional  and  statutory  officers  of  the  state,  and  the 
other  of  the  party  leaders,  —  they  call  them  party  bosses.  They 
call  the  system  —  I  didn't  coin  the  phrase,  I  adopt  it  because  it 
carries  its  own  meaning  —  the  system  they  call  'invisible  govern- 
ment.' For  I  don't  remember  how  many  years  Mr.  Conkling 
was  the  supreme  ruler  in  this  state ;  the  governor  did  not  count, 
the  legislatures  did  not  count;  comptrollers  and  secretaries  of 
state  and  what  not  did  not  count.  .  .  .  Then  Mr.  Platt  ruled 
the  state  .  .  .  and  the  capitol  was  not  here,  it  was  at  49 
Broadway.  .  .  .  The  ruler  of  the  state  during  the  greater  part 
of  the  forty  years  of  my  acquaintance  with  the  state  government 
has  not  been  any  man  authorized  by  the  constitution  or  by  the 
law,  and,  sir,  there  is  throughout  the  length  and  breadth  of  this 
state  a  deep  and  sullen  and  long-continued  resentment  at  being 
governed  thus  by  men  not  of  the  people's  choosing."  This 
charge  was  not  successfully  disputed  either  in  the  constitutional 
convention  or  outside. 

The  delegate  convention  system  doubtless  might  have  been 
greatly  improved  by  the  adoption  of  certain  reforms.  The  chief 
of  these  were :  — :  (i)  the  adoption  of  a  uniform  primary  day 
and  the  holding  of  a  joint  primary  for  all  political  parties  at  the 
regular  polling  places ;  (2)  the  official  enrolment  of  all  members 
of  recognized  political  parties ;  (3)  the  direct  election  of  all  dele- 
gates to  all  conventions,  so-called  intermediate  conventions 
being  abolished ;  (4)  the  direct  election  of  party  committeemen 
as  well  as  delegates  to  conventions  at  the  primaries ;  (5)  the 
printing  of  an  official  primary  ballot,  the  names  of  all  candidates 
for  choice  as  delegates  to  conventions  or  as  committeemen  to  be 
filed  with  appropriate  public  officials  a  reasonable  length  of  time 
before  the  primaries ;  (6)  the  fixing  of  the  dates  of  all  political 
conventions  and  the  regulation  of  procedure  therein  by  law ;  (7) 
the  certification  of  the  election  of  all  delegates  by  public  officials 
and  the  determination  of  contests  between  rival  delegations  by  the 
state  courts ;  (8)  the  abolition  of  the  secret  ballot  in  conventions 
and  the  nomination  of  all  candidates  by  open  roll  call ;  (9)  the 

1  See  Report  of  the  Joint  Committee  of  the  Legislature  of  New  York  on  Primary  and 
Election  Laws,  1910,  p.  217. 


i88       STATE  GOVERNMENT  IN  UNITED  STATES 

regulation  of  the  basis  of  representation  in  conventions  and  upon 
party  committees  by  known  and  fixed  party  rules ;  and  (10)  the 
extension  to  primary  elections  of  the  laws  relating  to  corrupt 
practices  at  general  elections.  Nowhere,  however,  were  the 
party  managers  willing  to  consent  to  extensive  reforms,  until 
the  demand  for  the  abolition  of  the  convention  system  and  the 
establishment  of  the  system  of  direct  nominations  at  the  pri- 
maries had  become  so  strong  that  the  reform  of  the  convention 
system  was  no  longer  acceptable. 

The  delegate  convention  system,  so  far  as  nominations  for 
state  office  are  concerned,  has  now  given  way  in  most  states  to 
the  system  of  direct  nominations  at  the  primaries,  or  as  it  is 
commonly  called,  of  direct  primaries.  This  system  has  been  in 
operation  for  many  years  in  various  localities  for  the  nomination 
of  candidates  for  local  office,  and  for  a  number  of  years  in  the 
South  for  the  nomination  of  Democratic  candidates  for  state 
office.1  Its  use  for  the  nomination  of  candidates  for  state  office 
in  the  North  and  West  is  more  recent,  but  already  Wisconsin 
and  Oregon,  the  first  northern  and  western  states  to  adopt 
the  state-wide  direct  primary,  have  employed  the  system  for 
ten  years.  It  is  not  too  soon  to  inquire  to  what  extent  the 
system  has  justified  the  hopes  of  its  originators. 

WORKING  OF  THE  DIRECT  PRIMARY 

A  candidate  for  nomination  under  the  direct  primary  system 
ordinarily  secures  a  place  on  the  official  primary  ballot  by  filing 
a  petition.  This  petition  bears  not  less  than  a  prescribed  num- 
ber of  signatures,  varying  with  the  size  of  the  electoral  district 
and  the  importance  of  the  office  sought.  In  states  where  there 
is  an  official  party  enrolment  the  signatures  must  be  of  enrolled 
members  of  the  party  whose  nomination  is  sought.  Experience 
has  indicated  that  the  collection  of  signatures,  at  least  by  candi- 
dates early  in  the  field,  is  mainly  a  matter  of  money,  although 
since  the  process  of  signature  collecting  serves  to  a  certain  extent 
to  advertise  the  candidacy,  it  is  not  altogether  a  waste  of  money. 
A  few  states  have  faced  the  situation  more  candidly  by  providing 
that  a  filing  fee  shall  be  paid  to  the  public  treasury  in  lieu  of  a 
1  See  E.  Meyer,  Nominating  Systems  (ist  edit.),  1902. 


THE  POLITICAL  PARTY  189 

petition.  In  most  of  these  states,  however,  the  requirement  of 
a  fee  has  been  declared  unconstitutional,  on  the  ground  that  it 
sets  up  a  requirement  for  election  to  public  office  not  authorized 
by  the  Constitution.  The  logic  of  these  decisions  is  difficult  to 
appreciate,  since  the  requirement  of  a  petition  amounts  to  the 
same  thing.  In  several  southern  states  where  the  direct  primary 
has  been  voluntarily  established  by  the  Democratic  party,  nota- 
bly in  Virginia  and  South  Carolina,  the  party  rules  provide 
that  the  candidate  shall  give  bond  to  pay  his  proportionate  share 
of  the  expense  of  conducting  the  primary.  This  requirement  is 
complained  of  by  persons  without  private  means  or  organized 
support,  on  the  ground  that  it  excludes  them  from  contesting  for 
the  nominations,  but  it  is  not  clear  that  many  persons  have  in 
practice  been  excluded  whose  candidacies  would  have  responded 
to  any  considerable  public  demand.  In  general,  the  process  of 
getting  on  the  primary  ballot  is  not  difficult,  and  the  establish- 
ment of  the  direct  primary  has  undoubtedly  tended  to  increase 
the  number  of  active  candidates  for  party  nominations  wherever 
there  has  been  a  fair  chance  of  success  at  the  general  election. 

The  establishment  of  the  direct  primary  has  also  tended  to 
alter  the  methods  of  campaigning  for  nominations.  Under  the 
convention  system  the  object  of  the  candidate  was  to  secure  the 
support  of  the  delegates,  and  his  activity  was  necessarily  directed 
towards  securing  the  favor  of  those  whose  influence  with  the 
delegates  might  be  supposed  to  be  greatest.  This  influence 
might  rest  with  the  voters,  by  whom  the  delegates  to  the  lowest 
order  of  conventions  were  at  least  nominally  elected,  or  it  might 
rest  with  the  professional  party  managers,  by  whom  such  dele- 
gates might  be  actually  selected,  and  by  whom  the  delegates  to 
the  higher  orders  of  conventions  commonly  were  actually  selected. 
Under  the  direct  primary  system  it  is  the  support  of  the  voters 
themselves  that  must  be  secured.  This  support  may  be  obtained 
by  direct  appeals  to  the  voters  in  the  case  of  all  nominations  in 
which  the  interest  of  the  voters  can  be  aroused  by  such  appeals. 
In  other  cases  it  may  be  necessary,  as  under  the  convention  sys- 
tem, to  enlist  the  interest  of  the  party  managers,  or  to  combine 
with  a  candidate  for  nomination  to  a  more  conspicuous  office  and 
form  a  " slate."  " Trading"  votes  in  a  direct  primary,  however, 
is  not  so  easy  a  process  as  "  trading  "  votes  in  a  convention.  The 


STATE  GOVERNMENT  IN  UNITED  STATES 

candidates  must  generally  be  more  dependent  upon  "publicity," 
that  is,  upon  the  dissemination  of  information  concerning  their 
personality,  their  record,  their  purposes,  and  their  associations. 
If  a  party  is  united  upon  its  principles,  primary  campaigns  must 
inevitably  turn  chiefly  upon  personalities,  but  where,  as  fre- 
quently happens,  a  party  is  not  united  upon  state  issues,  the 
primary  campaign  may  provide  a  more  effective  opportunity  for 
the  public  discussion  of  such  issues  than  the  general  election 
itself.  Such  is  generally  the  case  in  many  parts  of  the  South, 
and  in  not  a  few  of  the  northern  and  western  states. 

The  result  of  the  increase  in  the  number  of  active  candidates 
for  the  important  nominations  and  of  the  change  in  the  character 
of  primary  campaigns,  taken  together  with  the  consciousness  on 
the  part  of  the  voters  of  the  greater  power  that  may  be  theirs  under 
the  system  of  direct  nominations,  has  been  to  increase  the  in- 
terest of  the  rank  and  file  in  the  making  of  nominations.  This 
increase  of  interest  in  nominations,  however,  has  not  taken  place 
equally  with  respect  to  all  nominations.  There  has  been  a 
general  tendency  to  neglect  the  primaries  of  parties  with  little 
chance  of  success  at  the  general  election,  the  members  of  such 
parties  often  taking  more  interest  in  the  primaries  of  the  domi- 
nant party  than  in  their  own.  Not  infrequently,  even  in  northern 
and  western  states,  the  attendance  at  the  primary  of  the  domi- 
nant party  closely  approaches  and  occasionally  surpasses  the 
party  vote  at  the  general  election,  whilst  the  attendance  at  the 
primaries  of  the  opposition  is  but  a  small  fraction  of  their  vote 
at  the  polls.  In  the  primaries  of  parties  with  good  prospects  of 
success  at  the  general  election,  the  interest  of  the  voters  depends 
upon  the  importance  of  the  nominations  which  are  to  be  made 
and  the  closeness  of  the  contest  between  the  several  candidates 
for  nomination.  When  a  close  contest  is  waged  for  an  important 
nomination,  the  interest  of  the  voters  is  much  greater  than  it 
commonly  was  in  similar  cases  under  the  delegate  convention 
system.  But  contests  for  minor  places  on  the  state  ticket,  in- 
cluding high  judicial  offices,  and  for  minor  administrative  and 
judicial  offices  generally,  often  fail  to  arouse  any  lively  public 
interest.  A  candidate  for  nomination  for  such  a  position  as 
secretary  of  state  or  judge  of  a  circuit  court  has  ordinarily  a 
great  deal  of  difficulty  in  getting  the  rank  and  file  of  the  party  to 


THE  POLITICAL  PARTY  191 

think  about  his  candidacy  at  all,  to  say  nothing  of  forming  any 
intelligent  opinion  of  the  requirements  of  the  office  and  the  quali- 
fications of  the  various  candidates  for  nomination  thereto. 

The  unequal  development  of  popular  interest  in  nominations 
which  results  from  the  establishment  of  the  direct  primary  system 
has  had  important  consequences  upon  the  character  of  party 
leadership.  The  influence  of  the  regular  party  managers  or 
"machine"  upon  nominations  for  the  conspicuous  offices  has 
been  diminished,  for  "machine"  candidates  must  secure  the 
approval  of  the  rank  and  file,  expressed  directly  in  the  primary, 
and  under  such  circumstances  as  tend  to  encourage  independent 
candidates  to  repudiate  the  leadership  of  unworthy  "bosses." 
A  candidate  for  governor  or  United  States  senator,  fresh  from 
popular  endorsement  in  the  primary,  is  far  stronger  with  reference 
to  the  powers  of  the  "invisible  government"  than  a  candidate 
for  a  similar  position  nominated  under  the  convention  system 
could  ordinarily  have  been.  To  the  extent  that  the  offices 
for  which  nominations  are  sought  are  conspicuous,  the  effect 
of  the  direct  primary  is  to  establish  "visible"  party  leadership 
in  place  of  "invisible"  leadership.  But,  as  has  been  pointed 
out,  many  of  the  offices  for  which  nominations  are  commonly 
made  in  the  direct  primary  are  not  conspicuous.  The  voters  are 
not  generally  interested  in  them,  or  well  informed  with  respect 
to  their  requirements  and  the  qualifications  of  those  who  seek 
them.  In  such  cases,  when  there  is  no  official  "slate"  prepared 
by  the  regular  party  managers,  a  common  practice  is  for  a 
candidate  for  a  conspicuous  nomination  to  make  a  slate  of  his 
own  by  pooling  his  interests  with  those  of  the  candidates  for 
other  nominations  whose  cooperation  is  likely  to  prove  most 
useful.  Thus  the  result  of  the  primary  election,  so  far  as  those 
other  nominations  are  concerned,  is  likely  to  be  an  endorsement  of 
a  certain  slate-maker,  either  the  "machine"  or  the  successful 
candidate  for  the  most  conspicuous  nomination,  rather  than  cf 
the  several  other  candidates  in  particular.  If  the  "machine 
slate"  is  endorsed,  the  primary  system  is  only  partially  success- 
ful in  substituting  visible  for  invisible  party  leadership.  In 
either  case,  so-called  direct  nominations  are  much  less  direct 
in  fact  than  they  may  be  made  to  appear. 

If  primary  nominations  for  all  offices  are  actually  direct,  the 


192       STATE  GOVERNMENT  IN  UNITED  STATES 

results  may  be  even  less  satisfactory  than  when  they  only  appear 
to  be  direct.  One  of  the  chief  advantages  of  the  popular  election 
of  large  numbers  of  administrative  and  judicial  officers,  from  the 
standpoint  of  the  professional  politician,  is  the  facility  it  affords 
for  placating  all  sections  of  a  heterogeneous  party  by  distributing 
the  minor  nominations  among  the  different  elements  within  the 
party.  But  in  the  direct  primary  it  becomes  possible  for  any 
members  of  a  party  to  make  an  appeal  to  that  element  which  is 
most  numerous,  geographical,  racial,  or  religious,  as  the  case 
may  be.  If  this  is  done  by  some  candidate  for  each  place  on  the 
ticket,  it  may  happen  that  all  the  successful  candidates  will 
represent  the  dominant  element  in  the  party.  Such  lack  of 
balance  in  the  party  ticket  may  lead  to  grave  dissatisfaction 
among  the  other  elements  within  the  party,  and  thereby  imperil 
the  integrity  of  party  loyalty  and  the  effectiveness  of  party  dis- 
cipline. This  menace  to  the  solidarity  of  party  organization  is 
much  more  serious  under  the  direct  primary  than  under  the  con- 
vention system,  for  in  a  convention  the  delegates  can  easily 
select  candidates  for  the  minor  places  on  the  ticket  with  a  view 
to  their  effect  on  the  strength  of  the  ticket  as  a  whole.  More- 
over, an  active  direct  primary  campaign  seems  more  likely  to 
arouse  bitter  personal  enmities  than  a  campaign  for  convention 
delegates.  At  least  it  makes  such  enmities  better  known  to  the 
public,  and  hence  more  difficult  to  settle  after  the  heat  of  the 
campaign.  The  results  upon  party  unity  in  the  ensuing  cam- 
paign for  election  can  more  easily  be  unfortunate  than  under  the 
convention  system.  An  active  primary  campaign,  too,  is 
likely  to  lay  more  stress  upon  the  issues  with  respect  to  which 
the  party  is  divided  than  upon  those  with  respect  to  which  it  is 
united.  Where  the  former  are  the  more  important,  it  is  well 
that  it  should  be  so,  but  the  former  may  not  be  the  more  im- 
portant. Supporters  of  unsuccessful  candidates  for  nomination 
may  more  easily  than  under  the  convention  system  come  to 
undervalue  the  principles  upon  which  the  members  of  the  party 
are  agreed.  In  short,  the  direct  primary  system,  though  it 
greatly  increases  the  interest  of  voters  in  party  nominations,  at 
least  in  those  for  the  more  important  offices,  and  to  a  correspond- 
ing extent  increases  also  the  sense  of  responsibility  on  the  part 
of  the  leaders  to  the  rank  and  file,  is  less  favorable  than  the 


THE  POLITICAL  PARTY  193 

convention  system  to  the  maintenance  of  party  harmony,  and 
consequently  to  the  efficiency  of  the  existing  bipartisan  system. 

EFFECT  ON  PARTY  ORGANIZATION 

Moreover,  the  direct  primary  system,  in  its  prevailing  form, 
includes  not  only  the  direct  nomination  of  candidates,  but  also 
the  direct  election  of  party  committeemen.  Under  the  conven- 
tion system,  as  has  been  pointed  out,  the  most  important  com- 
mittees, particularly  the  state  central  committees,  were  chosen 
only  indirectly  by  the  rank  and  file  of  the  parties,  usually  through 
the  instrumentality  of  the  conventions.  Where  the  system  of 
"invisible  government"  was  established,  the  convention  was 
more  likely  to  be  controlled  by  the  committee  than  the  committee 
by  the  convention.  The  only  committeemen  chosen  directly  by 
the  members  of  the  party  were  the  local  committeemen,  and  they 
were  dependent  for  their  positions  not  only  upon  their  ability  to 
control  their  districts  by  carrying  the  primaries  or  caucuses,  but 
also  upon  their  ability  to  obtain  "recognition"  by  their  superiors 
in  the  "organization."  District  leaders  as  a  rule  could  not  com- 
mand the  confidence  of  their  followers  unless  they  were  "  regular," 
and  they  could  not  indefinitely  maintain  their  regularity  unless 
they  also  enjoyed  the  confidence  of  their  superiors.  Thus  even 
the  local  committeemen,  since  they  could  not  serve  two  masters, 
tended  to  become  "organization"  men,  and  the  power  of  the 
"machine"  was  consolidated  from  top  to  bottom.  The  direct 
election  of  all  committeemen  profoundly  affects  this  internal 
relationship  of  the  "machine,"  for  it  makes  each  committeeman's 
title  to  office  as  good  as  any  other's.  It  is  no  longer  possible  for 
any  one,  whether  a  local  or  central  committeeman,  to  challenge 
the  regularity  of  another.  All  are  equally  dependent  upon  the 
rank  and  file  of  the  party,  and  equally  independent  of  one  an- 
other. The  result  is  to  decentralize  the  structure  of  party  or- 
ganization, and  thereby  to  diminish  the  power  of  unofficial  party 
managers  to  combat  the  enemies  of  party  harmony  by  the  time- 
honored  methods. 

The  effect  of  the  direct  primary  upon  the  relations  between 
committeemen  and  candidates  has  been  as  notable  as  its  effect 
upon  the  relations  between  the  different  orders  of  committeemen. 
o 


194       STATE  GOVERNMENT  IN  UNITED  STATES 

It  is  the  duty  of  committeemen  to  manage  election  campaigns  in 
the  interest  of  all  the  candidates,  and  it  is  the  duty  of  candidates 
to  work  for  the  success  of  the  party  as  a  whole.  In  other  words, 
it  is  necessary  that  candidates  and  committeemen  should  work 
together  in  harmony.  Under  many  primary  laws,  however, 
committeemen  do  not  take  office  until  the  beginning  of  the  year 
following  their  election.  Consequently  they  do  not  manage  the 
campaigns  of  the  candidates  nominated  in  the  same  primaries 
in  which  they  are  elected,  unless  they  happen  to  be  chosen  to 
succeed  themselves.  In  other  words,  the  candidates  nominated 
at  a  direct  primary  find  the  party  machinery  in  the  hands  of 
committeemen  chosen  as  a  rule  not  less  than  two  years  before. 
Now  if  there  has  been  no  change  during  this  period  in  the  control 
of  the  party,  this  arrangement  may  not  prove  unsatisfactory, 
but  if  the  candidates  and  committeemen  who  carry  the  primaries 
are  out  of  sympathy  with  the  committeemen  who  carried  the 
preceding  primaries,  dissensions  will  arise.  It  can  hardly  be 
expected  that  a  candidate  will  have  much  confidence  in  a  com- 
mittee whose  slate  perhaps  has  just  been  repudiated  in  the 
primary,  or  that  a  committee  will  be  zealous  in  support  of  a  candi- 
date who  has  just  smashed  the  official  slate.  Under  the  conven- 
tion system,  either  the  committeemen  were  responsible  to  the 
candidates  who  had  carried  the  convention,  or  the  candidates 
were  responsible  to  the  committeemen  who  had  manipulated  it. 
Under  the  direct  primary  system  the  convention  can  no  longer 
serve  as  the  instrument  of  party  harmony,  and  ordinarily  noth- 
ing is  substituted  for  it.  Thus  the  direct  primary  may  be  the 
means  of  making  party  committeemen  more  responsible  to  the 
rank  and  file  of  the  parties  than  before,  but  at  the  cost  of  a  more 
or  less  serious  division  of  authority  between  the  several  orders 
of  committeemen  and  the  candidates.  In  other  words  it  tends 
to  disorganize  the  major  parties. 

The  experience  of  the  last  ten  years  in  the  direct  primary  states 
indicates  that  the  new  system  alone  will  not  prevent  the  control 
of  nominations  by  minorities.  Where  any  member  of  a  party 
may  contest  for  a  nomination,  there  is  nothing  to  prevent  any 
number  of  persons  from  so  doing,  and  in  general,  as  already 
pointed  out,  the  most  important  nominations  are  likely  to  be 
sought  by  several  candidates.  Now  the  greater  the  number 


THE  POLITICAL  PARTY  195 

of  candidates  for  a  nomination,  the  less  the  likelihood  that  any 
one  of  them  will  secure  a  majority  of  all  the  votes  cast  in  the 
primary.  There  is  a  constant  temptation  for  each  candidate  to 
seek  to  divide  the  potential  following  of  his  leading  opponent  by 
inducing  several  candidates  to  appeal  to  the  same  following. 
The  result  may  be,  and  frequently  is,  that  the  successful  candidate 
for  the  nomination  receives  less  than  a  majority  of  all  the  votes 
cast.  This  in  itself  is  of  no  great  importance,  provided  that  the 
successful  candidate  is  not  a  person  to  whom  the  majority  of  the 
party  are  actually  opposed.  It  occasionally  happens,  however, 
that  there  is  a  definite  issue  between  the  majority  and  the  minor- 
ity of  a  party,  and  the  candidate  of  the  minority  wins  through 
the  division  of  the  majority  among  several  candidates.  In 
general,  the  candidate  favored  by  the  "machine"  has  a  big  ad- 
vantage over  his  competitors,  because  the  "machine"  is  generally 
the  most  adept  in  holding  its  following  together,  and  the  most 
efficient  in  getting  out  the  vote  in  the  primaries.  A  "good 
machine"  doubtless  will  ordinarily  not  intervene  in  the  primaries 
on  behalf  of  any  of  the  candidates,  at  least  not  on  behalf  of  those 
for  conspicuous  nominations,  but  will  remain  impartial  until 
after  the  nominations  have  been  made.  But  the  direct  primary 
was  not  introduced  on  account  of  "good  machines"  but  on  ac- 
count of  "bad  machines."  Where  no  great  issue  is  at  stake  in 
the  nominations,  and  the  questions  are  mainly  of  personality, 
the  "machine"  seems  generally  able  to  prepare  a  "slate," 
especially  for  the  less  important  offices  filled  by  election  in  the 
state  at  large  and  in  the  unwieldier  sort  of  districts,  and  procure 
its  endorsement  in  the  primaries.  It  is  not  surprising  that  the 
direct  primary  has  not  been  the  instrument  of  any  general  over- 
throw of  the  established  leaders  in  the  major  parties. 

OTHER  EFFECTS  OF  THE  DIRECT  PRIMARY 

The  effect  of  the  establishment  of  the  system  of  direct  nomina- 
tions upon  the  character  of  the  candidates  actually  nominated 
for  public  office  is  difficult  to  estimate.  During  the  compara- 
tively short  period  that  the  direct  primary  system  has  been  in 
general  operation,  the  political  situation  has  been  too  confused 
to  permit  the  discovery  of  any  definite  change  either  in  the  ability 


196       STATE  GOVERNMENT  IN  UNITED  STATES 

or  in  the  moral  character  of  the  candidates  of  the  major  parties. 
In  a  few  states  the  introduction  of  the  state-wide  direct  primary 
was  followed  by  a  change  in  the  personnel  of  the  party  leaders, 
in  the  other  states  no  change  took  place.  Doubtless  some  men 
have  been  nominated  who  would  not  have  been  nominated  under 
the  former  system,  or  at  least  would  not  have  been  nominated  so 
easily,  but  it  cannot  yet  be  affirmed  that  the  type  of  man  who  is 
successful  in  politics  has  been  materially  altered.  The  evidence 
is  clearer  with  respect  to  the  effect  of  the  direct  primary  upon 
the  conduct  of  the  men  nominated  and  elected  to  public  office, 
at  least  in  the  case  of  men  elected  to  the  more  conspicuous  offices. 
These  men  seem  generally  to  display  more  initiative  in  office, 
more  independence  of  unofficial  party  leaders,  and  more  confi- 
dence in  the  support  of  public  opinion  than  similar  men  in  similar 
positions  were  wont  to  display  when  nominated  under  the  con- 
vention system.  Above  all  the  establishment  of  the  direct  pri- 
mary has  strengthened  the  position  of  the  governor  as  the  leader 
of  his  party  and  thereby  tended  to  make  party  leadership  more 
"visible"  and  hence  more  responsible.  Political  issues  have 
been  presented  more  directly  to  the  members  of  the  several 
parties,  and  thus  the  whole  electorate  has  been  compelled  to 
think  more  continuously  and  more  accurately  about  public 
affairs.  The  minor  officeholders  are  at  least  less  dependent 
upon  unofficial  party  leadership  than  they  were  under  the  un- 
regulated convention  system,  and  the  undue  influence  of  special 
interests  operating  through  secret  arrangements  with  professional 
party  managers  and  "bosses"  must  likewise  have  been  somewhat 
diminished. 

The  general  establishment  of  the  direct  primary  system  has 
thus  been  followed  by  notable  improvement  in  all  conditions 
with  respect  to  which  the  delegate  convention  system  had  be- 
come objectionable.1  It  must  not  be  inferred,  however,  that 
all  the  credit  for  the  improvement  is  due  to  the  change  from  in- 
direct to  direct  nominations.  The  direct  primary  system  could 
not  be  established  without  the  adoption  also  of  many  of  the  re- 
forms suggested  for  the  improvement  of  the  convention  system. 
Direct  nominations  have  meant  the  holding  of  joint  primaries 
for  all  major  parties  on  a  uniform  primary  day  under  the  manage- 

1  See  ante,  p.  103. 


THE  POLITICAL  PARTY  197 

ment  of  public  election  officials  in  accordance  with  rules  laid 
down  by  law,  subject  to  appeal  to  the  courts  for  the  determina- 
tion of  the  rights  of  partisans  in  general  and  particularly  of 
candidates  for  nominations.  They  have  meant  also  the  aboli- 
tion of  all  intermediate  conventions,  the  direct  election  of  dele- 
gates to  the  state  conventions,  and  the  direct  election  of  all 
important  party  committeemen.  Finally,  they  have  meant 
the  extension  to  the  primaries  of  most  of  the  provisions  of  law 
intended  to  protect  the  purity  of  the  general  elections.  All 
these  reforms  could  have  been  adopted  without  the  abandon- 
ment of  the  delegate  convention  system,  had  the  party  managers 
and  bosses  consented;  and,  if  adopted,  they  would  have  pro- 
duced at  least  a  part  of  the  improvement  in  political  conditions 
which  has  actually  taken  place  since  the  introduction  of  the 
direct  primary.  Actually,  however,  the  whole  improvement  in 
the  conditions  under  which  nominations  are  made  is  associated  in 
the  minds  of  the  voters  with  the  introduction  of  the  system  of 
direct  nominations,  and  under  the  circumstances  such  an  asso- 
ciation of  ideas  is  not  unjustified. 

The  direct  primary  system,  nevertheless,  must  be  regarded 
as  an  imperfect  instrument  for  the  selection  of  partisan  candi- 
dates. In  the  first  place,  no  satisfactory  test  of  party  affiliation 
has  yet  been  devised.  The  true  purposes  and  motives  of  voters 
who  seek  recognition  as  members  of  a  particular  party  are 
beyond  the  reach  of  public  primary  officials  acting  in  ac- 
cordance with  rigid  rules  of  law.  The  establishment  of  an 
official  party  enrolment,  based  on  the  declaration  of  the 
voter  at  primary  or  registration  day,  is  at  best  a  mechanical 
arrangement,  tending  to  prevent  honest  voters  from  changing 
their  affiliation  promptly  in  response  to  changes  in  their  political 
opinions  or  in  the  nature  of  the  paramount  issues,  but  by  no 
means  ensuring  that  none  but  genuine  members  of  a  party  shall 
participate  in  the  making  of  its  nominations.  Indeed  in  locali- 
ties where  one  of  the  major  parties  dominates  the  local  political 
situation,  the  closed  primary  system  inevitably  fosters  an  un- 
natural concentration  of  voters  of  divergent  political  sympathies 
in  the  locally  dominant  party.  In  states  where  the  primary  of 
the  dominant  party  is  more  important  than  the  general  election, 
a  like  tendency  may  be  discovered,  and  in  all  states  there  is  a 


198        STATE  GOVERNMENT  IN  UNITED   STATES 

more  or  less  general  impression  on  the  part  of  the  voters  that  the 
primary  is  to  be  considered  as  a  preliminary  public  election 
rather  than  a  private  or  purely  partisan  affair.  Any  effective 
test  of  party  affiliation  or  system  of  enrolment  is  accordingly 
felt  to  be  an  interference  with  the  secrecy  of  the  ballot.  Where 
the  so-called  open  primary  has  been  established,  however,  the 
invasion  of  the  primaries  of  one  party  by  the  members  of  an- 
other for  the  purpose  of  procuring  the  nomination  of  the  weakest 
candidates  may  easily  become  a  serious  menace  to  the  integrity 
of  party  nominations.  Where  several  candidates  are  contesting 
for  an  important  nomination  in  the  primary  of  one  party  and 
there  are  no  important  contests  for  nominations  in  the  primary 
of  the  other  party,  the  exercise  of  an  improper  influence  upon  the 
nominations  of  the  first  party  by  voters  who  do  not  expect  to 
support  its  candidates  at  the  ensuing  election  is  the  subject  of  not 
infrequent  complaints.  There  is  no  agreement  as  yet,  however, 
upon  the  proper  test  of  party  affiliation,  if  any,  and  no  decision 
has  been  reached  as  between  the  open  and  the  closed  primary. 

FURTHER  REFORM  OF  NOMINATING  METHODS 

The  most  obvious  alternative  to  the  existing  partisan  primary 
systems  is  a  non-partisan  primary  system.  At  a  non-partisan 
primary  the  voter  is  free  to  choose  among  all  the  candidates  for 
any  nomination,  regardless  of  his  or  their  party  affiliations.  The 
two  candidates  receiving  the  greatest  and  second  greatest  num- 
ber of  votes,  respectively,  for  any  nomination  become  the  official 
candidates  for  the  office  at  the  ensuing  election.  No  party 
labels,  nor,  as  a  rule,  descriptions  of  any  sort,  are  printed  either 
on  the  primary  ballot  or  on  that  used  at  the  general  election. 
By  the  abolition  of  party  designations  on  the  primary  ballot, 
and  the  decision  at  a  second  election  between  the  two  leading 
candidates  at  the  primary,  the  state  can  avoid  many  of  the 
perplexing  questions  inseparable  from  the  attempt  to  regulate 
partisan  nominations  by  law.  It  becomes  unnecessary  to  define 
the  test  of  party  affiliation,  for  the  state  by  refusing  to  recognize 
party  designations  relieves  itself  of  the  responsibility  for  main- 
taining the  integrity  of  the  party  organizations.  Under  the 
non-partisan  primary  system,  voluntary  electoral  associations 


THE  POLITICAL  PARTY  199 

may  still  make  their  nominations  before  the  primaries,  if  they 
wish,  but  control  of  the  nominating  machinery,  whatever  it 
may  be,  no  longer  carries  with  it  such  enormous  advantages  as 
under  the  former  delegate  convention  system  prior  to  the  estab- 
lishment of  the  direct  primary.  Control  of  the  nominating 
machinery  under  the  delegate  convention  system,  as  formerly 
established,  carried  with  it  an  excessive  influence  upon  elections, 
because  the  electoral  system  was  a  plurality  electoral  system. 
The  non-partisan  primary  system  is  in  effect  a  majority  electoral 
system,  under  which  the  voter  has  two  votes,  a  first-choice  vote 
expressed  hi  the  primary,  and  a  second-choice  vote  expressed  at 
the  ensuing  general  election.  In  case  the  voter's  first  choice  is 
one  of  the  two  leading  candidates  at  the  primary,  his  second 
choice  can  be  cast  and  counted  for  him  again  at  the  final  election. 
Otherwise  he  is  free  to  make  a  second  choice  between  the  two 
candidates  most  generally  preferred  at  the  primary.  If  it  be 
provided  that  any  candidate  at  the  primary  who  receives  a 
majority  of  all  the  votes  cast  shall  thereupon  be  declared  elected 
without  the  formality  of  a  second  election,  the  non-partisan 
primary  system  becomes  substantially  identical  with  the  majority 
electoral  system  established  in  Germany,  France,  and  Italy  and 
other  European  countries. 

There  is  a  distinct  tendency  in  recent  primary  legislation  to 
reject  both  forms  of  the  partisan  primary  and  adopt  the  non- 
partisan  primary.  This  tendency  first  appeared  in  connection 
with  municipal  elections.  The  separation  of  local  from  state 
and  national  issues  was  especially  desired  in  municipal  affairs 
and  the  abolition  of  party  designations,  which  were  mainly 
national  and  state  party  designations,  seemed  the  most  direct 
way  of  bringing  about  the  desired  separation.  The  non-partisan 
primary  was  first  applied  to  the  selection  of  candidates  for  state 
office  in  connection  with  judicial  nominations.  The  briefest 
experience  with  the  direct  primary  made  it  evident  that  purely 
judicial  issues  had  no  place  in  ordinary  partisan  controversies, 
and  that  judges  ought  not  to  be  compelled  to  procure  their 
nominations  by  partisan  appeals  on  issues  with  which  impartial 
judges  should  have  no  concern.  The  non-partisan  judicial 
primary  has  already  been  adopted  in  several  states.1  The  next 

1  The  American  Year  Book  for  1913,  p.  75. 


200       STATE  GOVERNMENT  IN  UNITED  STATES 

step  in  the  development  of  the  non-partisan  primary  was  its 
extension  to  the  nomination  of  local  officers  other  than  those  in 
cities.  In  California  the  non-partisan  primary  system  was 
adopted  for  county  nominations  in  1913.  In  Minnesota  the 
non-partisan  primary  system  was  applied  to  the  selection  of 
candidates  for  the  state  legislature  in  1912,  and  the  further  ex- 
tension of  the  system  to  the  selection  of  all  candidates  for  state 
office  would  seem  to  be  dependent  only  upon  the  more  general 
realization  that  purely  state  issues,  like  municipal  issues,  should 
be  separated  so  far  as  possible  from  those  pertaining  to  the 
nation.  In  California  a  proposal  to  establish  the  non-partisan 
primary  system  for  all  nominations  except  those  for  President, 
United  States  senator,  and  congressman  was  adopted  by  the 
legislature  hi  1915,  but  was  rejected  by  the  voters  at  a  referendum 
election. 

It  would  seem  clear  that  the  state  should  either  protect  the 
purity  of  partisan  nominations  by  establishing  an  effective  test 
of  party  affiliation,  or  abandon  the  attempt  to  regulate  the  selec- 
tion of  candidates  by  political  parties,  and  frankly  treat  the 
primary  as  a  preliminary  public  election.  The  so-called  open 
primary  is  a  hybrid  system  which  has  fewer  advantages  than 
either  the  closed  primary  or  the  non-partisan  primary,  and  most 
of  the  disadvantages  of  both.  The  closed  primary  is  the  least 
objectionable  to  party  leaders  and  "bosses"  because  it  is  least 
menacing  to  the  solidarity  of  party  organization.  The  non- 
partisan  primary  would  be  most  favorable  to  the  influence  of  the 
rank  and  file  of  the  parties,  provided  the  ballot  were  "short" 
enough  to  enable  them  to  dispense  with  the  party  label  as  a  guide 
to  intelligent  voting.  So  long,  however,  as  there  are  many  com- 
paratively unimportant,  or  at  least  inconspicuous,  offices  to  be 
filled  by  popular  election,  especially  in  unwieldy  or, .highly 
artificial  election  districts,  the  mere  voter  dares  not  dispense 
with  the  party  label  as  a  guide  through  the  maze  of  meaningless 
names  on  the  ballot.1  The  reform  of  the  process  of  nomination, 
like  so  many  other  reforms  in  the  machinery  of  government, 
cannot  be  completed  by  itself  alone.  It  can  be  effectively  ac- 
complished only  as  a  part  of  a  general  scheme  of  reform,  which 
shall  simplify  the  whole  process  of  election.  Such  a  general 

1  See  post,  ch.  viii. 


THE  POLITICAL  PARTY  201 

scheme  of  reform  in  its  turn  is  dependent  upon  a  radical  reorgani- 
zation of  the  whole  structure  of  state  government. 

Various  methods  have  been  employed  in  different  states  to 
dimmish  the  evils  of  primary  nominations  by  minorities  of  the 
parties.  In  some  states  it  has  been  provided  that  no  nomination 
shall  be  made  by  less  than  some  specified  portion  of  the  party, 
such  as  35  or  40  per  cent,  and  that  in  case  of  a  failure  to  nominate 
in  the  primary  the  nomination  shall  be  made  by  a  convention  or 
party  committee.  In  other  states  it  has  been  provided  that  in 
case  there  is  no  nomination  by  a  majority  of  the  voters  attending 
the  primary,  a  second  primary  shall  be  held,  at  which  the  members 
of  the  party  shall  choose  between  the  two  leading  candidates  at 
the  first.  This  system,  which  in  effect  is  a  non-partisan  primary 
within  a  partisan  primary,  has  been  favored  in  several  southern 
states  where  the  Democratic  nomination  is  equivalent  to  election, 
and  where  accordingly  the  regulation  of  the  process  of  nomina- 
tion is  as  important  as  the  regulation  of  the  whole  electoral  sys- 
tem in  many  states.  In  a  few  states  provision  is  made  for  the 
expression  of  first  and  second  choice  votes  on  one  ballot  at  a 
single  primary.  Thus,  if  no  candidate  is  the  first  choice  of  a 
majority  of  the  voters,  their  second  choices  may  be  ascertained 
without  the  trouble  and  expense  of  a  second  primary.  Where 
the  nomination  is  equivalent  to  election,  this  procedure  is  sub- 
stantially the  same  as  would  be  the  abolition  of  the  primary  in 
many  states,  and  the  holding  of  a  single  non-partisan  election  at 
which  the  preference  of  a  majority  of  the  voters  could  be  ascer- 
tained by  means  of  a  preferential  ballot.  Such  a  non-partisan 
electoral  system,  avoiding  or  at  least  diminishing  the  evils  of 
plurality  elections  by  means  of  the  preferential  ballot,  would  be 
less  expensive  to  the  state,  less  laborious  to  the  voter,  less  ex- 
hausting to  the  candidate,  and  less  demoralizing  to  the  party, 
than  any  primary  system  requiring  a  second  election  to  determine 
the  will  of  the  majority.1  Preferential  voting  in  itself  is  practi- 
cable enough.2  Whether  such  a  system  of  voting  would  be  feasible 
in  many  states  would  depend  mainly  upon  the  feasibility  of 
other  reforms,  such  as  the  short  ballot. 

1  See  A.  N.  Holcombe,  "Direct  Primaries  and  the  Second  Ballot,"  in  American 
Political  Science  Review,  Nov.,  1911. 

2  See  description  of  Indiana  direct  primary  law  of  1915  in  American  Year  Book 
for  igi5,  pp.  86-87. 


202        STATE  GOVERNMENT  IN  UNITED  STATES 

FURTHER  REFORM  OF  PARTY  ORGANIZATION 

The  most  serious  objection  to  the  direct  primary,  from  the 
standpoint  of  the  practical  politician,  is  its  tendency  to  dis- 
organize the  major  parties.  In  order  to  secure  a  contested 
nomination  a  candidate  must  build  up  a  more  or  less  elaborate 
personal  organization.  Candidates  for  important  nominations 
in  extensive  districts,  such  as  a  gubernatorial  nomination  hi  one 
of  the  larger  states,  must  build  up  elaborate  organizations,  or 
must  possess  a  well-organized  following,  if  they  are  to  have  much 
chance  of  success.  Once  nominated,  such  a  candidate  is  not 
unlikely  to  put  more  trust  in  his  personal  organization  than  in 
the  official  party  organization.  The  latter  may  indeed  have 
opposed  his  candidacy,  unless  he  was  originally  the  "organiza- 
tion" candidate.  Thus,  one  consequence  of  the  direct  primary 
system  is  the  creation  of  numerous  personal  campaign  com- 
mittees, which  may  conduct  more  or  less  independent  campaigns, 
each  on  behalf  of  its  own  candidate,  even  after  the  primaries. 
The  authority  of  the  official  party  committees  is  thereby  im- 
paired and  the  solidarity  of  party  organization  undermined. 
Moreover,  for  reasons  already  pointed  out,  the  nature  of  the 
primary  campaign  is  such  as  to  foment  internal  dissensions 
within  a  party  to  a  greater  extent  than  campaigns  for  nomination 
under  the  convention  system,  and  to  make  the  subsequent  res- 
toration of  party  harmony  more  difficult.  Finally,  as  has  also 
been  already  pointed  out,  the  direct  election  of  the  party  com- 
mittees in  the  primaries  tends  to  decentralize  the  organization 
of  the  major  parties.  The  effect  of  decentralization  is  to  facilitate 
independent  action  by  factions  within  a  party,  and  thus  to  render 
even  more  difficult  the  maintenance  of  party  unity  by  the  state 
leaders  or  "bosses."  In  short,  the  direct  primary  system,  at 
least  in  its  present  form,  tends  to  break  down  the  bipartisan  sys- 
tem in  state  politics.  Whether  the  direct  primary  can  be  so 
reformed  as  to  preserve  the  existing  degree  of  popular  control 
over  party  nominations,  whilst  removing  its  tendency  to  disrupt 
the  major  party  organizations,  is  therefore  a  question  that  must 
be  considered  before  final  judgment  can  be  passed  upon  the  pri- 
mary system  itself. 

The  disorganization  of  parties,  which  the  direct  primary  in  its 
present  form  seems  calculated  to  produce,  may  be  somewhat 


THE  POLITICAL  PARTY  203 

relieved  by  either  of  two  reforms.  One  is  the  appointment  of 
party  committeemen  after  the  primaries  by  the  successful  candi- 
dates for  nomination ;  the  other,  the  designation  of  candidates 
for  nomination  by  party  committeemen  before  the  primaries, 
subject  to  responsibility  for  their  designations  at  the  primaries. 
The  former  course  might  seem  the  more  consistent  with  the  theory 
of  direct  nominations,  but  that  solution  of  the  problem  is  ren- 
dered difficult  by  the  fact  that  hi  each  district  there  are  ordinarily 
so  many  candidates  on  the  ballot  that  it  would  be  impracticable 
for  them  all  to  join  in  the  appointment  of  committeemen,  and 
unfair  to  leave  such  appointments  to  any  one  of  them.  The 
other  solution  implies  the  legal  recognition  of  a  duty  on  the 
part  of  the  regular  committees  to  make  official  "slates"  for 
the  guidance  of  the  voters  at  the  primaries  and  to  retire  from 
office  at  once  hi  case  their  "slates"  are  repudiated.  This  was 
substantially  the  plan  advocated  by  Governor  Hughes  of  New 
York  in  1910.  This  plan,  as  finally  adopted,  was  so  modified 
as  to  give  the  candidates  for  nomination  designated  by  the 
committees  a  preferential  position  on  the  ballot  and  the  exclusive 
use  of  the  party  emblem.  These  artificial  advantages,  combined 
with  the  advantages  naturally  enjoyed  in  the  primaries  by  the 
candidates  favored  by  the  "organization,"  made  it  extremely 
difficult  to  break  the  official  "slates,"  and  assured  the  regular 
party  managers  almost  as  effective  control  of  nominations  as 
they  had  enjoyed  under  the  convention  system.  Though  this 
plan,  as  adopted,  disappointed  its  advocates,  the  principle  would 
seem  to  be  sound  that  harmony  must  exist  between  candidates 
and  committeemen.  There  is  no  assurance  that  such  harmony 
will  exist  where  both  are  chosen  independently  at  the  primaries, 
the  committeemen  generally  two  years  in  advance  of  the  candi- 
dates. If  it  be  thought  unwise  to  secure  harmony  by  authorizing 
committeemen  to  designate  "slates"  under  suitable  restrictions, 
then  some  procedure  should  be  devised  by  which  candidates  may 
designate  committeemen.  Such  procedure  could  be  devised  more 
easily,  if  the  number  of  offices  filled  by  election  were  not  so  great. 
The  necessity  of  improving  the  forms  of  party  organization,  if 
the  system  of  direct  nominations  is  to  be  made  more  satisfactory, 
constitutes  one  of  the  strong  arguments  in  favor  of  the  electoral 
reform  known  as  the  short  ballot. 


204       STATE  GOVERNMENT  IN  UNITED  STATES 

None  of  the  plans  for  party  reorganization  hitherto  tried  has 
operated  in  a  satisfactory  manner,1  and  the  problem  of  the 
proper  relation  between  candidates  and  permanent  officers  can- 
not yet  be  regarded  as  solved.  Apparently  popular  control  of  the 
nominating  process  cannot  be  secured  except  by  some  means  no 
less  menacing  to  the  solidarity  of  the  major  party  organizations 
than  the  existing  direct  primary.  At  all  events  the  tendency  of 
recent  legislation  with  reference  to  nominations  seems  to  be  in 
the  direction  of  a  further  weakening  of  the  major  party  organiza- 
tions. Neither  the  growing  dislike  of  the  closed  primary  nor  the 
growing  dislike  of  minority  nominations  augurs  well  for  the 
maintenance  of  the  bipartisan  system  in  its  traditional  form  and 
vigor.  The  direct  primary  in  its  present  form  seems  unlikely  to 
give  permanent  satisfaction,  and  yet  no  plans  of  further  reform 
are  in  sight  except  such  as  threaten  even  more  seriously  the 
solidarity  of  the  major  parties.  In  short,  the  judgment  to  be 
pronounced  upon  the  direct  primary  system  itself  seems  finally 
to  depend  upon  the  judgment  to  be  pronounced  upon  the  bi- 
partisan system  in  state  politics.  If  the  bipartisan  system  be 
on  the  whole  a  necessary  and  proper  instrument  for  render- 
ing more  effective  popular  control  over  governmental  agencies, 
as  its  advocates  contend,  then  further  changes  in  the  direct 
primary  should  be  made  with  a  view  primarily  to  the  strengthen- 
ing of  the  major  party  organizations.  Such  changes  would  neces- 
sarily be  in  the  direction  of  a  restoration  of  power  to  the  conven- 
tions. But  if  the  bipartisan  system  be  on  the  whole  an  impedi- 
ment to  an  effective  popular  control  of  governmental  agencies, 
then  the  primary  should  be  further  developed  along  the  lines 
of  least  resistance.  Whether  the  bipartisan  system  should  be 
further  fortified,  or  further  undermined,  is  a  question  that  can- 
not be  answered  without  further  consideration  of  its  effects  upon 
the  legislative,  executive,  and  judicial  branches  of  state  govern- 
ment. 

1  See  for  descriptions  of  novel  plans  of  party  organization  adopted  in  Colorado 
and  South  Dakota,  The  American  Year  Book  for  1912,  pp.  60-6 1. 


CHAPTER  VIII 
THE  CONDUCT  OF  ELECTIONS 

THE  first  step  in  the  conduct  of  elections  is  the  preparation  of 
the  ballot.  Prior  to  the  introduction  of  the  Australian  or  official 
ballot,  the  ballot  was  theoretically  prepared  by  each  voter  for 
himself.  Actually  it  was  in  most  cases  prepared  for  the  voter 
by  his  local  party  managers.  There  was  ordinarily  a  separate 
form  of  ballot,  therefore,  for  each  local  electoral  district  and  for 
each  political  party.  The  ballots  were  generally  distributed 
at  the  polls  by  party  officials,  and  were  publicly  dropped  into 
the  ballot  boxes  by  the  voters.  Such  a  system  was  ruinous  to 
the  independence  of  the  voters  and  the  honesty  of  elections.  The 
independent  voter  was  first  put  to  the  inconvenience  of  preparing 
his  own  ballot.  He  was  then  compelled  to  disclose  his  inde- 
pendence to  an  unsympathetic  world.  Intimidation  by  the 
exercise  of  economic  or  social  pressure  was  thus  made  easy. 
Bribery  was  also  made  easy,  for  the  party  worker  could  always 
know  whether  or  not  a  purchased  vote  was  actually  delivered. 

THE  OFFICIAL  BALLOT 

The  introduction  of  the  official  ballot  brought  about  an  enor- 
mous improvement  in  the  conduct  of  elections.  As  originally 
employed  in  Australia,  the  official  ballot  contained  the  printed 
names,  with  addresses  but  without  party  designations,  of  all 
avowed  candidates  for  the  office  to  be  filled  at  the  election,  to- 
gether with  a  blank  space  in  which  the  voter  might  write  in  any 
other  name  for  which  he  might  wish  to  vote.  These  ballots  were 
prepared  and  distributed  by  public  officials  and  marked  by  the 
voters  in  secret.  The  Australian  ballot  was  introduced  into 
Great  Britain  in  1872,  and  thus  brought  to  the  favorable  atten- 
tion of  Americans.  Beginning  in  1888,  it  was  rapidly  introduced 

205 


206       STATE  GOVERNMENT  IN  UNITED  STATES 

in  the  United  States,  and  now  exists  in  some  form  in  forty-four 
states.  In  all  these  states,  however,  the  official  ballot  has  lost 
its  original  Australian  simplicity.  The  practice  of  holding  a 
multitude  of  elections  simultaneously  and  of  nominating  party 
tickets  of  candidates  for  all  elective  offices  makes  the  American 
ballot  much  longer  than  the  Australian  or  English.  It  becomes  a 
"blanket "  ballot.  Nevertheless,  here  as  abroad,  the  independent 
voter  has  been  protected  by  its  introduction.  Intimidation  and 
bribery  have  been  made  more  difficult.  The  temptation  to  the 
corrupt  use  of  money  has  been  diminished.  A  heavy  item  in  the 
cost  of  running  for  office  has  been  eliminated.  Probably  no 
reform  in  electoral  technique  has  worked  a  greater  improvement 
in  the  conduct  of  elections  than  the  official  ballot. 

The  extent  of  the  improvement,  however,  has  depended  upon 
the  form  of  the  official  ballot.  The  first  form,  originally  intro- 
duced in  1888  in  Massachusetts,  contains  the  names  of  all  the 
candidates  for  each  office  separately,  arranged  generally  in  alpha- 
betic order.  The  groups  of  candidates  for  the  several  offices 
are  arranged  according  to  the  supposed  importance  of  the  offices. 
For  the  convenience  of  the  voters  in  identifying  the  candidates  of 
their  choice,  the  name  of  each  candidate  is  followed  by  the  name 
of  the  party  by  which  the  candidate  was  nominated.  In  order 
to  vote  such  a  ballot,  it  is  necessary  for  the  voter  to  place  a  cross- 
mark  in  the  square  opposite  the  name  of  each  candidate  for  whom 
he  wishes  his  ballot  to  be  counted.  Thus,  the  use  of  the  Massa- 
chusetts ballot  involves  the  making  of  a  separate  mark  for  each 
office  for  which  the  voter  has  a  choice  among  the  candidates. 
Since  it  will  take  an  equal  length  of  time  to  vote  a  "straight" 
ticket,  that  is,  for  all  the  candidates  of  any  one  party,  and  a 
"split"  ticket,  that  is,  for  candidates  of  different  parties  for 
different  offices,  a  party  watcher  at  the  polls  cannot  ascertain 
by  the  length  of  time  the  voter  is  occupied  in  marking  his  ballot 
whether  he  is  "regular"  or  votes  independently.  The  Massa- 
chusetts ballot,  therefore,  is  the  form  most  favorable  to  the  in- 
dependence of  the  voter  and  the  honesty  of  elections.  Moreover, 
such  a  ballot  cannot  be  voted  at  all  by  an  illiterate  voter  without 
the  aid  of  some  mechanical  device  prepared  in  advance  which  will 
enable  him  to  locate  the  names  of  the  candidates  for  whom  he 
wishes  to  vote  by  their  position  upon  the  printed  ballot.  In 


THE  CONDUCT  OF  ELECTIONS  207 

practice,  therefore,  the  introduction  of  the  Massachusetts  ballot 
is  almost  equivalent  in  itself  to  the  establishment  of  a  literacy 
test  for  the  suffrage. 

The  second  form  of  the  official  ballot,  commonly  called  the 
New  York  ballot,  though  discarded  in  New  York  in  favor  of  the 
Massachusetts  ballot  in  1913,  differs  from  the  latter  in  two  im- 
portant respects.  In  the  first  place,  the  names  of  the  candidates 
are  arranged  on  the  ballot  according  to  the  parties  by  which 
they  are  nominated  instead  of  according  to  the  offices  for  which 
they  are  nominated.  The  candidates  of  each  party  appear  in  a 
vertical  column,  and  the  several  party  columns  usually  are  ar- 
ranged in  the  order  of  party  importance,  measured  by  the  party 
vote  at  the  last  preceding  election.  Secondly,  at  the  head  of 
each  column,  usually  just  above  the  name  of  the  party,  appears 
a  square  or  circle,  surmounted  by  a  party  emblem.  In  order 
to  vote  a  "straight"  ticket  by  means  of  such  a  ballot  it  is  neces- 
sary merely  to  place  a  single  mark  in  the  party  square  or  circle 
at  the  head  of  the  party  column.  The  illiterate  voter  is  enabled 
to  place  his  mark  properly  by  the  presence  of  the  emblem,  an 
eagle,  or  a  rooster,  or  a  star,  or  a  fountain,  or  a  flaming  torch,  as 
the  case  may  be,  which  he  readily  learns  to  recognize.  To  vote 
a  "split"  ticket  it  is  generally  necessary  to  mark  a  cross  opposite 
the  name  of  each  candidate  for  whom  the  voter  wishes  his 
ballot  to  be  counted,  even  if  all  but  one  are  members  of  the  same 
party.  Where  the  ballot  contains  the  names  of  candidates  for 
a  large  number  of  offices,  for  example,  forty-five  in  Cuyahoga 
County  (Cleveland),  Ohio,  hi  1908  (not  counting  twenty- three 
presidential  electors),  it  takes  much  more  time  and  effort  to 
vote  independently  than  to  vote  a  regular  party  ticket.  This 
tends  to  discourage  independent  voting,  and  also  to  disclose 
to  party  watchers  the  identity  of  the  independent  voters.  More- 
over, it  is  ordinarily  impossible  for  the  illiterate  voter  to  vote  any- 
thing but  a  straight  ticket.  The  New  York  form  of  ballot  is 
obviously  more  desirable  from  the  standpoint  of  the  party  politi- 
cian, and  probably  for  that  reason  was  more  widely  adopted  than 
the  original  Massachusetts  form.1  Whether  it  is  also  more  de- 

1  At  the  close  of  iqt2  the  New  York  ballot  existed  in  27  states,  the  Massachu- 
setts ballot  in  15.  Since  then  a  few  states  have  changed  from  the  New  York  to  the 
Massachusetts  plan,  notably  New  York  herself.  The  Massachusetts  ballot  is  some- 


208       STATE  GOVERNMENT  IN  UNITED  STATES 

sirable  from  the  standpoint  of  the  public,  however,  depends  upon 
other  considerations. 

MASSACHUSETTS  V.  NEW  YORK  BALLOT 

The  original  advocates  of  ballot-reform  in  the  United  States 1 
preferred  the  Massachusetts  form  of  the  ballot.  This  preference 
was  based  partly  on  the  ground  that  the  Massachusetts  ballot 
more  closely  resembled  the  Australian  model,  but  mainly  on 
the  ground  that  its  use  would  make  it  as  easy  to  vote  a  "split" 
as  a  "straight"  ticket,  and  would  thereby  tend  to  encourage 
independent  voting.  This  argument  assumed  that  the  habit  of 
party  regularity  ought  not  to  be  artificially  stimulated.  There 
was  some  foundation  for  such  an  assumption.  One  of  the  most 
gifted  critics  of  American  politics,  writing  at  the  time  of  the  in- 
troduction of  the  Australian  ballot,  observed  with  reference  to 
the  two  major  parties  :  "  Neither  party  has,  as  a  party,  .  .  .  any 
clean-cut  principles,  any  distinctive  tenets.  Both  have  tradi- 
tions. Both  claim  to  have  tendencies.  Both  have  certainly  war 
cries,  organizations,  interests,  enlisted  in  their  support.  But 
those  interests  are  in  the  main  the  interests  of  getting  or  keeping 
the  patronage  of  the  government.  Tenets  or  policies,  points  of 
political  doctrine  and  points  of  political  practice,  have  all  but 
vanished.  They  have  not  been  thrown  away,  but  have  been 
stripped  away  by  time  and  the  progress  of  events,  fulfilling  some 
policies,  blotting  out  others.  All  has  been  lost,  except  office 
or  the  hope  of  it."  2  If  it  were  true  that  the  major  parties  are  so 
unprincipled  as  this,  the  case  against  anything  tending  to  stimu- 
late the  habit  of  party  regularity  would  seem  to  be  well  founded. 
Bryce's  pessimistic  view,  however,  sounds  strangely  similar  to 
that  penned  by  another  gifted  critic  of  American  politics,  a  half- 
century  earlier,  and  already  quoted  in  these  pages.3  Yet  history, 

times  modified  by  the  addition  of  party  squares  or  circles,  as  in  Pennsylvania,  and 
the  New  York  ballot  by  the  elimination  of  the  same,  as  in  Iowa.  The  effect  of  these 
modifications  is  to  make  the  ballot  in  each  case  more  like  the  other  pure  form  than 
is  the  other  modified  form. 

1  See  J.  H.  Wigmore,  The  A  ustraltan  Ballot. 

1  James  Bryce,  The  American  Commonwealth,  pt.  iii,  The  Party  System,  ch.  54, 
The  Parties  of  To-day. 

*  See  ante,  Chap,  iv,  p.  100. 


THE  CONDUCT  OF  ELECTIONS  209 

as  Bryce  himself  knew,  had  shown  the  inaccuracy  of  De  Tocque- 
ville's  analysis  of  the  party  system,  for  Bryce  admits  that  the 
parties  at  least  had  traditions.  While  De  Tocqueville  was  in  the 
act  of  writing,  the  Jacksonian  Democracy  was  engaged  in 
hammering  out  a  distinctive  policy  which  served  it  well  for  a 
generation :  a  strict  construction  of  the  constitution,  a  tariff  for 
revenue  only,  internal  improvements  at  state,  not  at  federal, 
expense,  an  independent  treasury  and  a  severance  of  relations 
between  the  government  and  the  banks,  and  no  interference  by 
Congress  with  the  domestic  institutions  of  the  states.  So  like- 
wise, while  Bryce  was  penning  his  strictures  of  the  American 
party  system,  the  campaign  of  1888  was  taking  shape.  This 
was  to  end  in  the  effective  control  by  the  Republicans  of  all 
branches  of  the  federal  government  for  the  first  time  in  half/  a 
generation,  and  in  the  enactment  of  a  series  of  measures  reflecting 
the  distinctive  tenets  of  the  dominant  party.  But  it  is  easier 
for  the  critic  to  recognize  established  traditions  —  for  unless  they 
were  generally  recognized  they  would  not  be  traditions  —  than 
to  discern  those  that  are  in  the  process  of  making.  Mariners  on 
the  high  seas  cannot  discern  whether  the  tide  is  rising  or  falling, 
yet  it  continually  rises  and  falls.  When  the  facts  of  party  history 
are  placed  in  their  proper  perspective,  the  case  against  the  habit 
of  party  regularity  does  not  seem  so  clear,  at  least  so  far  as  candi- 
dates for  federal  office  are  concerned.  The  vindication  of  na- 
tional party  organizations  against  the  charge  of  lack  of  principle, 
however,  does  not  of  itself  vindicate  the  use  of  national  party 
designations  by  candidates  for  state  and  local  office. 

The  arguments  in  favor  of  the  New  York  ballot,  nevertheless, 
are  not  without  some  weight.  In  the  first  place,  under  existing 
conditions  the  great  majority  of  the  voters  ordinarily  prefer  to 
vote  a  "straight"  rather  than  a  "split"  ticket.  This  preference 
is  clearly  indicated  by  the  election  returns  of  the  states  which 
possess  the  Massachusetts  ballot.  Now  the  form  of  ballot  which 
is  most  convenient  for  the  great  majority  of  the  voters  is  the  one 
which  ought  to  be  used,  other  things  being  equal.  Secondly, 
under  existing  conditions  the  great  majority  of  the  voters  need 
some  assistance  in  the  task  of  voting.  This  need  is  recognized 
even  by  the  advocates  of  the  Massachusetts  ballot,  for  that  form, 
like  the  New  York  form,  is  arranged  to  show  the  party  affiliation 


210       STATE  GOVERNMENT  IN  UNITED  STATES 

of  each  candidate  whose  name  is  printed  on  the  ballot.  Both 
forms  of  ballot,  therefore,  tend  to  stimulate  the  habit  of  party 
regularity,  though  doubtless  the  New  York  form  does  so  to  a 
greater  degree.  Under  existing  conditions  it  is  necessary  to 
affix  a  party  label  to  each  candidate,  for  without  the  label  the 
voter  would  often  be  at  a  loss  how  to  mark  his  ballot.  At  every 
general  election  there  are  so  many  obscure  candidates  for  so  many 
inconspicuous  offices  that  few  voters  can  form  a  personal  opinion 
with  respect  to  the  qualifications  of  all  of  them.1  Now  if  the 
form  of  the  ballot  is  to  correspond  to  the  needs  of  the  existing 
electoral  system  and  to  the  facts  of  human  nature,  the  voter  must 
be  enabled  to  make  his  ballot  count  in  the  main  as  a  vote  of  confi- 
dence in  some  political  party,  which  selects  his  candidates  for 
him,  rather  than  in  the  particular  candidates  themselves.  These 
for  the  most  part  he  would  try  in  vain  to  select  for  himself,  if 
he  were  left  wholly  to  his  own  knowledge  for  a  guide.  But  if 
the  voter  is  really  in  most  instances  indicating  his  choice  between 
parties  rather  than  between  candidates,  why  compel  him  to  go 
through  the  motions  of  marking  a  cross  against  the  name  of  a 
candidate  for  each  office,  when  one  mark  might  serve  equally 
well?  If  other  things  were  equal,  particularly  if  the  time  re- 
quired to  vote  a  "straight"  and  "split"  ticket  were  the  same, 
the  case  in  favor  of  the  New  York  form  of  ballot  would  be  strong. 
The  chief  criticism  of  the  form  of  the  official  ballot  applies  to 
both  the  prevailing  forms  alike.  It  is  that  the  state,  which 

1  The  Cuyahoga  County  (Cleveland),  Ohio,  ballot,  already  referred  to,  for 
example,  contains  the  names  of  the  candidates  of  seven  different  parties  for  the 
following  offices  (in  addition  to  twenty-three  presidential  electors  each) :  governor, 
lieutenant-governor,  secretary  of  state,  auditor  of  state,  treasurer  of  state,  attor- 
ney-general, commissioner  of  common  schools,  two  members  of  board  of  public 
works,  two  judges  of  the  supreme  court,  clerk  of  the  supreme  court,  dairy  and  food 
commissioner,  representative  in  Congress,  judge  of  the  circuit  court,  four  judges 
of  the  court  of  common  pleas,  three  state  senators,  eleven  representatives  to  the 
general  assembly  of  Ohio,  judge  of  probate  court,  sheriff,  county  auditor,  clerk 
of  the  court  of  common  pleas,  three  members  of  the  board  of  county  commissioners, 
county  treasurer,  county  prosecuting  attorney,  county  recorder,  county  surveyor, 
and  coroner.  Fortunately  not  all  the  parties  made  nominations  for  all  the  offices, 
but  enough  nominations  were  made  to  bring  the  total  number  of  names  (exclusive 
of  the  candidates  for  presidential  elector)  to  nearly  250.  Without  the  guidance 
of  the  party  label  it  is  safe  to  assert  that  few  voters  would  have  been  able  to  in- 
dicate their  choice  for  every  office  on  that  ballot,  and  that  many  voters  would 
have  been  practically  disfranchised  with  respect  to  most  of  the  forty-five  elections 
for  which,  in  addition  to  the  presidential  election,  that  ballot  was  made  to  serve. 


THE  CONDUCT  OF  ELECTIONS  211 

compels  the  voter  to  rely  so  largely  on  the  party  label  as  a  guide 
through  the  intricacies  of  the  ballot,  does  so  little  to  guarantee 
the  integrity  of  the  label.  At  most  the  primary  and  ballot  laws 
of  the  several  states  ensure  nothing  more  than  that  the  label  is 
borne  by  candidates  whose  nomination  is  "regular"  in  form. 
Concerning  the  substance  of  their  creed  and  the  purposes  of  their 
candidacy  the  official  party  label  signifies  little  or  nothing,  except 
in  the  case  of  presidential  electors.  Congressmen  may  be 
nominated  in  districts  where  the  majority  of  the  party  is  out  of 
sympathy  with  the  policies  professed  by  a  majority  of  the  dele- 
gates in  the  national  convention.  Under  most  primary  and 
ballot  laws  they  are  nevertheless  as  much  entitled  to  the  party 
label  as  the  candidate  for  president  himself.  Likewise  in  the 
case  of  candidates  for  state  office  the  legal  right  to  the  party  label 
may  indicate  little  or  nothing  with  respect  to  the  principles  and 
purposes  of  the  candidate.  Federal  and  state  governments 
alike  operate  directly  upon  the  people,  through  their  own  agents, 
and  the  principles  to  which  a  party  professes  allegiance  in  the 
nation  at  large  need  have  no  connection  with  those  which  it 
undertakes  to  advance  in  a  particular  state. 

In  most  states  which  have  established  the  direct  primary, 
special  efforts  have  been  made  to  provide  for  the  formulation  of 
the  party  issues  in  such  a  way  as  to  reflect  the  wishes  of  a  majority 
of  the  party.  The  state  platforms  are  usually  adopted  by  con- 
ventions or  party  councils  in  which  the  candidates  for  office 
who  have  been  successful  at  the  primaries  are  expected  to  wield 
the  chief  influence.  But  platforms  as  a  rule  actually  reflect  the 
principles  and  purposes  appropriate  to  candidates  for  political 
offices ;  that  is,  offices  through  which  policies  are  to  be  executed 
with  respect  to  which  the  voters  may  be  expected  to  have  opinions 
of  their  own.  Many  of  the  offices  for  which  partisan  candidates 
are  nominated  do  not  fall  within  this  category.1  A  state  con- 

1  For  example,  of  the  forty-five  offices,  exclusive  of  presidential  electors,  which 
the  voters  of  Cuyahoga  County  (Cleveland),  Ohio,  were  required  to  fill  or  help  fill 
by  election  in  1008,  the  following  were  hardly  appropriate  for  administration  upon 
either  national  or  state  party  lines :  coroner,  county  surveyor,  county  recorder, 
county  prosecuting  attorney,  county  treasurer,  county  commissioners,  clerk  of  the 
court  of  common  pleas,  county  auditor,  sheriff,  judge  of  probate  court,  judges  of 
court  of  common  pleas,  judge  of  circuit  court,  dairy  and  food  commissioner,  clerk 
of  supreme  court,  judges  of  supreme  court,  members  of  board  of  public  works,  com- 


212       STATE  GOVERNMENT  IN  UNITED  STATES 

vention  or  council,  meeting  to  draft  a  platform  for  a  state  cam- 
paign, ordinarily  reflects  the  principles  and  purposes  of  the  suc- 
cessful candidate  for  the  party  nomination  for  governor.  That 
these  principles  and  purposes  are  not  always  the  same  as  those  of 
the  most  conspicuous  party  candidate,  the  candidate  for  president, 
is  revealed  by  the  fact  that  a  state  occasionally  chooses  presi- 
dential electors  of  one  party  and  at  the  same  time  a  governor  of 
another  party.  In  states  with  the  New  York  ballot,  such  as  New 
York,  Ohio,  and  Illinois,  this  has  not  happened  so  frequently  as 
in  states  with  the  Massachusetts  ballot,  such  as  Massachusetts, 
Minnesota,  and  Oregon,  but  it  has  happened  often  enough  to 
indicate  that  the  same  party  label  may  mean  different  things  as 
applied  to  candidates  for  different  offices  on  the  same  ballot. 
It  may  also  mean  nothing  at  all,  except  that  a  nomination  is 
"regular"  in  form.  The  meaninglessness  of  the  national  party 
label  in  state  and  local  politics  is  most  conspicuously  revealed 
in  the  cases,  not  infrequent,  of  candidates  who  secure  in  the 
"regular"  manner  the  nominations  of  both  major  parties  for  the 
same  office. 

The  use  of  the  party  label  on  the  official  ballot  may  be  indis- 
pensable when  forty-five  offices  are  to  be  filled  by  the  voters  at 
one  operation,  but  under  existing  conditions  it  is  nevertheless 
objectionable.  Either  the  number  of  offices  to  be  filled  by  elec- 
tion at  any  one  tune  should  be  so  reduced  that  the  voters  can 
manage  the  operation  without  the  use  of  a  label,  or  the  state 
should  supplement  the  label  with  such  other  information  con- 
cerning the  candidates  for  election  as  will  enable  the  voters  to 
know  in  each  case  what  stands  behind  the  label.  In  other  words, 
it  is  not  the  form  of  the  ballot,  but  the  system  of  filling  so  many 
and  so  diverse  offices  at  the  same  time  without  proper  provision 
for  informing  the  voters  concerning  the  character  and  purposes 
of  the  several  candidates,  thereby  making  the  habit  of  party 
regularity  indispensable,  that  is  fundamentally  at  fault.  The 
full  advantages  of  the  official  ballot  will  not  be  realized  until 
either  party  designations  can  be  abolished  without  confusion 
to  the  voter,  or  the  state  can  undertake  to  furnish  the  voter  not 
only  with  the  party  designation  of  each  candidate,  but  also  with 

missioner  of  common  schools,  treasurer  of  state,  auditor  of  state,  and  secretary  of 
state. 


THE  CONDUCT  OF  ELECTIONS  213 

a  separate  statement  of  the  principles  and  purposes  professed  by 
each.  In  other  words,  the  further  improvement  of  the  form  of 
the  ballot  involves  either  the  further  reform  of  the  general 
structure  of  state  government  or  a  radical  change  in  the  methods 
of  conducting  political  campaigns. 

ACTUAL  CONDUCT  OF  ELECTIONS 

The  further  steps  in  the  conduct  of  elections  are  the  casting 
and  counting  of  the  ballots,  and  the  canvass  and  declaration  of 
the  returns.  Originally  these  duties  were  placed  upon  the  regular 
local  and  state  officials,  and  seem  to  have  been  performed  in  a 
fairly  satisfactory  manner.  With  the  growth  of  party  spirit, 
however,  the  original  system  became  less  satisfactory.  Local 
officials  were  not  unlikely  to  belong  to  one  party.  Under  such 
circumstances,  even  if  honest  men,  they  were  subject  to  the  temp- 
tation to  favor  the  candidates  of  their  own  party  in  the  decision 
of  questions  involving  the  exercise  of  administrative  discretion, 
such  as  the  right  of  a  challenged  voter  to  cast  his  ballot,  or  the 
validity  of  a  ballot  prepared  or  marked  in  an  irregular  manner. 
Prior  to  the  registration  of  voters  and  the  adoption  of  the  official 
ballot,  the  purity  of  elections  depended  in  no  small  part  on  the  exer- 
cise of  a  wise  discretion  by  the  officials  charged  with  the  conduct 
of  elections,  and  the  records  are  filled  with  contested  election 
cases  in  which  party  spirit  clearly  got  the  better  of  discretion.  If 
the  local  officials  were  not  honest,  particularly  if  they  were 
supported  by  a  majority  or  a  well-organized  minority  of  the  local 
electorate,  there  was  almost  no  limit  to  their  power  to  prevent 
a  free  ballot,  a  fair  count,  and  a  full  return.  Thus  the  notorious 
Boss  Tweed  of  New  York  City  is  reported  to  have  said:  "I 
don't  care  who  does  the  voting,  so  long  as  I  do  the  counting." 

The  conduct  of  elections  has  been  improved  by  the  application 
of  two  principles :  publicity,  and  bipartisanship.  First,  all 
political  parties,  in  some  cases,  all  candidates,  are  now  generally 
authorized  to  be  represented  at  the  polls  by  watchers.  The 
watchers  are  entitled  to  see  everything  that  is  done  by  the  elec- 
tion officials,  both  at  the  casting  and  at  the  counting  of  the 
ballots.  The  canvassing  of  the  returns  from  the  several  election 
districts  and  the  declaration  of  the  results  is  also  generally  done 


214       STATE  GOVERNMENT  IN  UNITED  STATES 

by  the  officials  charged  with  those  duties  in  the  presence  of 
watchers  or  of  the  public  at  large.  Provision  is  generally  made 
for  the  public  inspection  of  ballot  boxes  at  the  opening  of  the 
polls,  for  the  security  of  the  ballots  before  and  after  the  count, 
and  for  an  official  recount  at  the  request  of  any  candidate.  If 
the  count  is  correctly  and  publicly  made,  there  is  little  oppor- 
tunity for  further  error  in  the  canvass  of  the  returns  and  declara- 
tion of  the  results.  Secondly,  instead  of  leaving  the  conduct  of 
elections  to  the  regular  local  officials,  special  election  officials 
are  now  commonly  provided  in  such  a  manner  that  each  of  the 
two  major  parties  will  be  equally  represented.  The  appoint- 
ments of  election  officials,  though  generally  made  by  the  regular 
local  officials,  are  made  from  the  party  lists,  not  infrequently 
from  nominations  by  the  local  party  committees.  Election 
judges  and  clerks  act  in  pairs,  one  of  each  pair  belonging  to  each 
of  the  major  parties.  Thus  the  two  parties  are  enabled  to  check 
and  balance  one  another  in  the  conduct  of  elections.  So  far  as 
the  interests  of  the  public  coincide  with  the  interests  of  one  or 
the  other  of  the  major  party  organizations,  the  system  works 
well. 

The  system  of  bipartisan  control  breaks  down  at  the  point 
where  the  interests  of  the  major  party  organizations  cease  to 
coincide  with  those  of  the  public.  So  far  as  the  public  is 
interested  in  minor  parties,  the  system  is  defective,  though  not 
seriously  so  in  cases  where  the  minor  parties  can  afford  to  maintain 
their  legal  quota  of  watchers.  The  system  is  more  seriously 
defective  with  respect  to  the  purity  of  elections  at  which  measures, 
not  men,  are  at  stake,  especially  in  cases  where  both  major  parties 
are  interested  in  the  adoption  or  defeat  of  the  same  measures. 
Most  states  make  no  provision  for  watchers  in  behalf  of  measures 
which  may  be  submitted  to  the  electorate,  and  where  provision 
is  made  it  is  not  always  easy  to  take  advantage  of  it.  In  such 
cases  the  party  machines  may  conspire  to  falsify  the  counting  or 
return  of  the  ballots  without  much  risk  of  detection,  or  at  least 
of  conviction  for  any  crime.  This  was  done,  for  example,  in 
Michigan  in  1912,  in  the  case  of  the  woman  suffrage  amendment, 
in  certain  election  districts,  notably  in  Detroit.  Likewise  when 
the  interests  of  the  two  machines  are  identical  with  respect  to 
candidates  for  election,  the  possibility  of  collusion  and  fraud 


THE  CONDUCT  OF  ELECTIONS  215 

is  never  absent  under  the  bipartisan  system  of  control.  In  the 
main,  however,  elections  are  now  honestly  conducted,  or  may  be 
honestly  conducted,  if  the  public  will  take  the  trouble  to  enforce 
their  rights  under  the  laws,  especially  their  right  to  know  who  is 
registered  and  how  the  votes  are  cast  and  counted.  If  the  public, 
however,  leave  the  protection  of  their  interests  to  the  major  party 
organizations,  they  cannot  expect  their  interests  to  be  better 
protected  than  the  interests  of  the  major  parties  themselves. 
In  short,  the  principal  imperfections  in  the  election  machinery 
to-day  are  the  consequences  of  the  imperfection  of  the  bipartisan 
political  system.  In  general,  the  conduct  of  elections  is  now 
much  more  honest  than  fifty  or  even  twenty-five  years  ago. 
Serious  faults  in  the  contemporary  electoral  process  are  more 
manifest  in  connection  with  the  registration  of  the  voters  and 
the  conduct  of  campaigns  than  in  the  conduct  of  the  elections 
themselves. 

REGISTRATION 

All  states  provide,  either  in  the  constitution  or  by  statute,  that 
a  list  of  qualified  voters  be  prepared  to  serve  as  the  evidence  of 
the  voters'  right  to  vote  when  they  appear  at  the  polls  on  election 
day.  There  are  two  principal  methods  of  preparing  the  list  of 
qualified  voters.  Under  the  older  method,  which  still  obtains 
in  a  half  dozen  states,  the  list  of  qualified  voters  is  prepared  by 
the  selectmen,  as  in  Vermont,  or  by  the  poll-tax  collectors,  as  in 
Arkansas,  or  by  some  similar  body  of  local  officers.  The  newer 
method,  first  introduced  in  New  York  and  California  in  1866,  and 
adopted  during  the  last  thirty  years  in  more  than  forty  of  the 
states,  is  the  method  of  personal  registration.  The  prospective 
voter  is  required  to  visit  the  registrars  of  voters  in  person,  and 
establish  his  right  to  vote  by  producing  satisfactory  evidence  of 
his  possession  of  the  legal  requirements.  In  a  few  states  and  in 
most  large  cities  personal  registration  is  required  of  all  voters 
at  regular  intervals,  generally  every  year  or  every  other  year, 
but  in  most  states  it  is  sufficient  that  the  voter  establish  his  right 
once  in  person,  either  on  coming  of  age  or  on  acquiring  a  new 
legal  residence.  Thereafter  his  name  will  remain  upon  the  list 
until  death,  or  removal  from  the  district,  or  disqualification  for 
crime  or  other  valid  reason.  At  the  time  of  registration  various 


216       STATE  GOVERNMENT  IN  UNITED  STATES 

items  of  information  about  the  voter,  designed  to  establish 
his  identity  in  case  of  challenge  at  the  polls,  are  recorded.  This 
information  always  includes  the  ordinary  facts  of  name  and  resi- 
dence, and  in  some  cases,  particularly  in  large  cities  where  voters 
are  often  unknown  to  their  own  neighbors,  much  more  than  that. 
Thus  in  New  York  the  registry  of  voters  shows  the  following  in- 
formation: full  name  and  place  of  residence;  age;  length  of 
residence  in  state,  county,  and  election  district;  country  of 
birth,  and  date  of  naturalization,  if  naturalized,  and  designation 
of  court  issuing  the  certificate  of  naturalization ;  location  of  last 
preceding  voting-residence ;  date  when  registered ;  occupation ; 
location  of  employment;  and  signature  of  each  voter.  If  the 
voter  is  unable  to  write,  the  signature  is  omitted  and  a  record 
made  of  his  answers  to  a  series  of  questions  of  a  personal  nature. 
In  some  states  a  description  of  the  voter's  personal  appearance  is 
required,  the  object  being  to  prevent  impersonation  of  a  registered 
voter  by  one  not  entitled  to  vote.  In  the  states  where  personal 
registration  is  required  at  periodic  intervals,  the  voter  is  often  put 
to  considerable  trouble  in  order  to  keep  his  name  upon  the  registry 
and  the  requirement  is  in  substance  an  addition  to  the  regular 
qualifications  for  the  exercise  of  the  suffrage,  having  the  effect 
of  disfranchising  shiftless  or  indifferent  voters. 

The  proof  of  a  registration  law  is  in  the  enforcement.  In 
1913  a  registration  law  was  adopted  for  the  first  time  in  Indiana, 
one  of  the  last  states  to  provide  for  the  registration  of  voters, 
and  one  of  the  states  in  which  corrupt  practices  at  elections, 
particularly  bribery,  personation,  and  repeating,  had  long  been 
more  notorious  than  in  most  states.  This  law  was  in  effect 
during  the  electoral  campaign  of  1914.  In  1915  the  mayor  of 
Terre  Haute  and  115  other  local  politicians  were  indicted  and 
tried  for  corruption  at  the  preceding  election.  Of  the  accused, 
89  confessed  and  the  others  were  convicted.  The  evidence  in 
the  case  indicated  that  the  registration  law  had  been  made  a 
farce.  One  witness  testified  to  the  frequent  registration  of 
non-residents  and  of  dead  men,  and  in  one  case  even  of 
a  pet  dog.  On  election  day  these  fraudulent  registrations 
were  voted  on  by  hired  repeaters  and  thugs.  One  witness, 
who  was  under  twenty-one  years  of  age,  testified  that  he 
voted  fourteen  times;  another,  twenty-two  times.  A  saloon- 


THE  CONDUCT  OF  ELECTIONS  217 

keeper  testified  that  the  mayor  demanded  that  almost 
double  the  number  of  legal  voters  be  registered  in  one  pre- 
cinct, and  that  on  election  day  the  mayor  threatened  to  put  him 
out  of  business  unless  he  got  out  the  full  registered  vote.  A 
watcher  testified  that  in  one  precinct  where  eighteen  colored 
voters  resided  she  saw  between  three  and  four  hundred  colored 
men  vote.  This  is  one  of  the  most  extreme  cases  of  corruption  on 
record  in  American  politics,  and  it  happened  in  a  city  where  there 
was  a  modern  registration  law.  However,  the  guilty  were 
punished.  In  general,  it  seems  probable  that  false  registration, 
personation,  and  repeating  can  be  prevented,  or  at  least  reduced 
to  comparatively  small  proportions,  under  a  proper  registration 
law,  supported  by  local  public  opinion.  When  elections  are  held 
on  the  day  of  registration,  however,  as  is  done  in  some  states  in 
the  case  of  measures  submitted  to  the  people,  opportunity  for 
fraudulent  voting  is  afforded  by  the  fact  that  there  is  no  time  to 
examine  the  voting  lists  before  the  votes  are  cast,  and  hence  no 
time  to  challenge  the  "  floaters." 

In  most  states  the  self-interest  of  the  party  organizations  is 
the  principal  guarantee  of  the  integrity  of  the  process  of  registra- 
tion. Registration  officers  are  chosen  equally  from  the  two 
major  parties.  Appointment  is  a  common  mode  of  rewarding 
petty  party  workers.  In  New  Jersey,  by  the  registration  law 
of  1911,  an  attempt  was  made  to  improve  the  process  of 
registration  by  improving  the  character  of  the  registration 
officials.  The  law  provides  that  the  party  committees  or 
any  group  of  citizens  may  nominate  candidates  for  appointment 
as  registration  officers  to  the  civil  service  commission.  The  com- 
mission then  examines  the  candidates  both  with  respect  to  their 
ability  to  perform  the  simple  clerical  duties  of  the  office  and  with 
respect  to  their  general  record  and  moral  character.  From  the  list 
of  those  who  are  declared  to  be  qualified  the  actual  officials  are 
selected  by  lot.  Whether  the  abandonment  of  the  principle  of  bi- 
partisanship in  the  appointment  of  registration  officials  will  im- 
prove the  administration  of  the  law  would  depend  probably  upon 
the  ability  and  character  of  the  civil  sendee  commission  itself. 
If  the  civil  service  commission  were  influenced  by  partisanship, 
the  system  might  be  more  partisan  than  the  ordinary  bipartisan 
system.  But  if  the  civil  service  commission  maintains  its  in- 


218       STATE  GOVERNMENT  IN  UNITED  STATES 

dependence  of  partisanship,  the  system  should  afford  protection 
against  those  abuses  to  which  any  bipartisan  system  is  necessarily 
exposed. 

THE  CAMPAIGN 

There  are  four  principal  methods  of  reaching  the  voters.  The 
first  and  most  direct  is  by  personal  canvassing.  The  candidates 
or  their  representatives  interview  the  voters,  so  far  as  possible, 
and  solicit  their  support.  This  may  be  done  by  calling  on  the 
voters  at  their  residences  or  by  buttonholing  them  in  public 
places.  In  rural  districts  enterprising  candidates,  especially 
candidates  for  local  offices,  frequent  the  post  offices  around  mail 
time,  and  at  other  times  cover  the  countryside  as  best  they  can. 
In  recent  years  the  introduction  of  the  Ford  automobile  has 
tended  to  increase  the  radius  of  rural  canvassing.  In  the  cities 
canvassing  has  to  be  done  more  largely  at  night.  Where  saloons 
exist,  they  play  an  important  part,  and  would  do  so,  even  if  the 
liquor  dealers  themselves  were  not  interested  in  politics.  In 
former  times,  to  a  greater  degree  than  at  present,  the  saloon 
was  the  principal  scene  of  political  activity.  In  1884,  of  1002 
primary  meetings  and  local  district  conventions  held  in  New 
York  City  prior  to  the  presidential  election,  633  were  held  in 
saloons,  and  86  next  door  to  saloons.1  No  method  of  political 
campaigning  is  so  effective  as  personal  canvassing.  No  method 
makes  such  great  demands  upon  the  resources  of  the  candidate. 
Except  in  the  smallest  districts,  personal  canvassing  is  impracti- 
cable without  the  expenditure  of  large  sums  of  money  or  the  sup- 
port of  an  established  political  organization.  In  the  former 
case  the  candidate  can  build  an  organization  of  his  own.  In 
the  latter,  unless  he  is  a  candidate  for  an  important  and  con- 
spicuous office,  he  becomes  a  mere  cog  in  the  machine. 

The  second  method  of  reaching  the  voters,  and  the  only  other 
method  of  reaching  them  individually,  is  by  mail  or  by  the  dis- 
tribution of  hand-bills  from  house  to  house.  To  reach  the  indi- 
vidual voter  by  mail  involves  the  expenditure  of  from  two  to  ten 
cents  each,  according  as  the  candidate  sends  merely  a  postal 
card  or  a  more  or  less  elaborate  personal  letter.  In  a  guber- 

1  See  W.  M.  Ivins,  Machine  Politics  and  Money  in  Elections  in  New  York  City, 
p.  ai. 


THE  CONDUCT  OF  ELECTIONS  219 

natorial  campaign  in  New  York  State  such  a  method  would  in- 
volve the  expenditure  of  from  $35,000  to  $175,000  for  a  single 
communication.  The  distribution  of  hand-bills  would  be  no  less 
expensive,  but  might  be  more  satisfactory  to  the  candidate,  since 
the  payment  of  the  distributors  might  secure  their  votes  as  well 
as  their  services.  The  distribution  of  literature  is  much  less 
effective  than  personal  canvassing,  partly  because  it  is  difficult 
to  adapt  the  literature  to  the  temperament  and  circumstances 
of  the  individual  voter,  and  partly  because  it  is  by  no  means 
certain  that  the  voter  will  read  the  literature  after  it  is  delivered 
to  him. 

The  other  principal  methods  of  reaching  the  minds  of  the  voters 
aim  to  reach  them  en  masse.  One  method  of  reaching  the  voters 
en  masse  is  by  public  meetings.  This  method  involves  the  hiring 
of  halls,  and  usually  also  some  expense  for  speakers,  music, 
and  advertising.  Meetings  in  halls  are  commonly  attended  only 
by  partisans  of  the  candidates  in  whose  interest  the  meetings 
are  arranged.  They  are  probably  of  little  value  for  the  purpose 
of  winning  over  doubtful  voters  or  opponents.  Such  meetings  are 
useful  chiefly  for  the  purpose  of  arousing  the  enthusiasm  of 
the  faithful,  and  inciting  them  to  greater  activity  in  the  cam- 
paign. Street  meetings  and  meetings  at  factory  gates  during 
the  noon  hour  are  more  valuable  for  the  purpose  of  reaching 
indifferent  and  doubtful  voters  in  the  cities  and  industrial 
districts,  and  in  the  rural  districts  addresses  at  grange  meetings 
and  the  agricultural  fairs  serve  the  same  purpose.  A  less  labo- 
rious, though  more  expensive,  method  of  reaching  the  voters 
en  masse  is  by  advertising,  either  in  the  newspapers  or  on  the  bill- 
boards or  through  the  cinematograph.  In  so  far  as  such  publicity 
may  be  secured  without  cost,  as  by  letters  and  statements  to  the 
press,  interviews  with  reporters,  and  editorial  support,  it  is  the 
cheapest  and  easiest  method  of  campaigning.  It  cannot  be  so 
effective  as  personal  canvassing,  and  need  not  be  relied  upon  by 
candidates  in  small  districts  or  with  well-organized  support. 
But  in  larger  districts  all  candidates  for  nomination  at  the 
primaries,  unless  on  an  organization  slate,  and  independent  candi- 
dates for  election  are  mainly  dependent  upon  such  publicity, 
unless  they  are  supplied  with  adequate  campaign  funds.  In  short, 
under  modern  electoral  conditions,  the  support  of  an  elaborate 


220       STATE  GOVERNMENT  IN  UNITED  STATES 

party  organization  or  the  command  of  extensive  funds  is  indis- 
pensable for  any  effective  campaign  for  public  office,  except  in 
the  case  of  purely  local  offices.  If  the  candidate  is  supported 
by  an  organization,  then  the  burden  of  raising  the  funds  may  be 
shifted  from  the  shoulders  of  the  candidate  to  those  of  the  organi- 
zation, but  in  any  case  the  funds  must  be  raised. 

These  various  methods  of  campaigning  are  all  subject  to  abuse, 
though  in  different  degrees.  The  method  of  personal  canvassing 
is  most  subject  to  abuse,  because  it  is  most  secret  and  direct. 
Bribery,  intimidation,  and  the  exercise  of  undue  influence  gener- 
ally, whether  by  the  use  of  money,  by  promises  of  employment 
or  appointment  to  office,  by  threats  of  dismissal,  or  otherwise, 
may  be  safely  accomplished  only  through  direct  and  secret  con- 
tract with  the  voter.  The  employment  of  canvassers  and  hand- 
bill distributors  is  also  subject  to  grave  abuse,  since  such  em- 
ployment can  be  made  the  pretext  for  payments  to  men  whose 
chief  service  to  the  candidate  may  be  the  casting  of  their  votes 
for  him.  Where  the  intent  of  the  candidate  in  employing  such 
workers  is  primarily  to  secure  their  votes  rather  than  their 
services,  the  payment  partakes  more  of  the  nature  of  a  bribe  than 
of  a  wage.  Treating  likewise  may  easily  become  a  means  of 
undue  influence  and  corruption.  The  methods  of  reaching  the 
voters  en  masse  may  also  be  used  corruptly.  Halls  may  be  hired 
for  meetings,  or  saloons  for  committee  rooms,  with  the  intent 
of  influencing  the  proprietors  as  well  as  the  general  public. 
Newspapers  may  be  bought;  though,  if  the  ownership  is  not 
concealed,  such  a  use  of  money  cannot  ordinarily  be  regarded  as 
improper.1  A  graver  evil  is  the  secret  purchase  of  newspaper 
space  and  editorial  support.  But  the  most  serious  forms  of 
corruption  when  the  voters  are  dealt  with  en  masse  are  more 
subtle :  —  promises  of  future  benefits,  to  be  conferred  by  legis- 
lation or  otherwise,  which  those  who  make  the  promises  have 
no  intention  or  no  reasonable  hope  of  fulfilling ;  appeals  to  prej- 
udice and  passion ;  unmerited  personal  abuse  of  opponents,  mis- 
representation, slander,  and  libel. 

It  is  not  money  alone  that  is  the  source  of  all  evil  in  electoral 
campaigns.  Intimidation,  undue  influence,  unworthy  and  in- 

1  But  cf.  Graham  Wallas,  Human  Nature  in  Politics,  p.  97,  for  a  discussion  of 
circumstances  when  such  purchase  might  be  regarded  as  improper. 


THE  CONDUCT  OF  ELECTIONS  221 

sincere  arguments,  slander,  and  libel  are  evils  with  which  the 
corrupt  use  of  money  has  nothing  to  do.  Some  of  these  evils, 
such  as  slander  and  libel,  may  be  directly  attacked  by  appro- 
priate legislation.  Unfortunately  such  legislation  is  difficult  to 
enforce.  In  general  a  strong  and  healthy  public  opinion  must 
be  the  main  protection  of  candidates  against  such  intangible 
abuses  as  the  publication  of  unworthy  and  insincere  arguments, 
the  private  circulation  of  false  and  malicious  gossip,  and  the 
exercise  of  any  undue  influence  otherwise  than  by  the  use  of 
money.  It  is  only  because  the  body  of  voters  is  in  the  long  run  a 
good  judge  of  the  character  of  men  that  the  representative  system 
can  be  made  to  work  at  all  well.  The  use  of  public  patronage  for 
corrupt  purposes  is  a  more  tangible  evil.  This,  however,  can  be 
dealt  with  more  effectively  by  indirect  means  than  by  direct  pro- 
hibition. The  introduction  of  the  "merit"  system  in  place  of 
the  "spoils"  system  will  be  more  fully  discussed  in  connection 
with  the  consideration  of  the  administrative  systems  of  the  states. 
When  all  is  said,  it  remains  true  that  the  misuse  of  money  in 
electoral  campaigns  is  the  chief  tangible  source  of  evil.  The 
prevention  of  corrupt  practices  is  correctly  associated  in  the  pub- 
lic mind  with  the  regulation  of  the  expenditure  of  money. 

CORRUPT-PRACTICES  LEGISLATION  IN  ENGLAND 

American  legislation  designed  to  prevent  corrupt  practices 
during  electoral  campaigns,  like  American  legislation  designed 
to  improve  the  conduct  of  elections,  was  inspired  by  the  example 
of  England.  The  British  corrupt  and  illegal  practices  act  of 
1883,  like  the  British  ballot  act  of  1872,  set  up  a  standard  which 
Americans  were  not  slow  to  appreciate. 

The  English  law  is  founded  upon  the  distinction  between  acts 
which  are  declared  to  be  corrupt  and  those  which  are  merely 
illegal.  Corrupt  acts  include  bribery,  treating,  undue  influence, 
personation,  and  failure  to  make  the  required  returns  of  cam- 
paign expenditures.  Illegal  acts  include  the  payment  of  money 
by  or  on  behalf  of  a  candidate  for  the  conveyance  of  voters  to 
the  polls,  for  the  use  of  property  for  the  posting  of  bills,  for  the 
use  of  election  committee  rooms  in  excess  of  the  authorized 
number  in  the  district,  for  music,  torches,  flags,  banners,  cockades, 


222       STATE  GOVERNMENT  IN  UNITED  STATES 

ribbons,  etc.,  and  for  the  use  of  any  premises  where  liquor  is  sold 
as  a  committee  room,  and  the  payment  of  money  for  any  purpose 
in  excess  of  the  maximum  amount  permitted  by  law.  The  acts 
declared  to  be  corrupt  are  carefully  denned.  Illegal  acts  are 
for  the  most  part  acts  which  may  easily  be  made  the  pretext  for 
corruption,  although  not  in  themselves  corrupt.  In  order  further 
to  guard  against  corruption,  the  law  defines  the  objects  for  which 
expenditures  may  lawfully  be  made.  Thus  the  candidate  may 
employ  one  election  agent,  one  deputy  in  each  election  district, 
one  polling  agent  at  each  polling  place,  and  a  limited  number  of 
clerks  and  messengers,  depending  upon  the  character  of  the  dis- 
trict and  the  number  of  voters.  No  paid  employee  is  permitted 
to  vote.  No  money  may  be  expended  except  for  the  following 
purposes  :  (i)  payment  of  costs  of  holding  the  election,  assessed 
by  the  election  officials  equally  upon  the  candidates  for  election ; 
(2)  payment  of  the  personal  expenses  of  the  candidates ;  (3)  ad- 
vertising, printing,  and  distributing  addresses,  circulars,  and 
notices;  (4)  stationery,  messengers,  postage,  and  telegrams, 
including  telephone ;  (5)  public  meetings ;  (6)  expense  of  main- 
taining headquarters.  Finally  the  maximum  of  legal  expendi- 
tures is  limited,  excluding  personal  expenses,  according  to  the 
nature  of  the  district  and  the  number  of  voters.  In  urban  dis- 
tricts containing  less  than  2000  voters  the  candidate  is  limited 
to  a  maximum  of  about  $1700.  In  larger  urban  districts  the 
limit  is  increased  a  little  less  than  $150  for  each  thousand  addi- 
tional voters.  In  rural  districts  the  limits  are  higher.  Personal 
expenses  are  limited  to  under  five  hundred  dollars. 

The  law  fixes  the  responsibility  for  the  use  of  money  during 
the  campaign  upon  a  person  known  as  the  election  agent.  Each 
candidate  is  required  to  designate  an  election  agent  at  the  be- 
ginning of  the  campaign  and  to  make  all  expenditures,  except 
those  classed  as  personal,  through  his  agent.  The  candidate 
may  act  as  his  own  agent,  but  ordinarily  he  employs  a  professional 
campaign  manager.  Within  five  weeks  after  the  election,  the 
agent  must  file  a  return  with  the  local  election  officials  showing : 
(i)  all  payments  made  through  his  agency  on  account  of  the  can- 
didate ;  (2)  all  personal  expenses  of  the  candidate ;  (3)  the  costs 
of  the  election  assessed  against  the  candidate  by  the  election 
officials ;  (4)  all  disputed  claims,  so  far  as  known ;  (5)  all  unpaid 


THE  CONDUCT  OF  ELECTIONS  223 

claims ;  (6)  a  complete  statement  of  all  receipts,  whether  from 
the  candidate  or  from  any  other  person.  In  case  of  contributions 
from  any  other  than  the  candidate,  the  name  of  each  contributor 
and  the  amount  of  the  contribution  must  be  separately  shown. 
Both  agent  and  candidate  must  also  severally  declare  under  oath 
that  they  will  not  pay  nor  promise  anything  further  on  account  of 
the  election  than  shown  in  the  return.  The  return  must  include 
vouchers  for  all  payments  in  excess  of  ten  dollars,  and  all  bills 
are  presumed  to  have  been  paid  within  four  weeks  after  the  elec- 
tion. Summaries  of  these  returns  for  all  the  candidates  are 
published  by  the  election  officials  at  the  expense  of  the  candidates 
in  at  least  two  papers  of  general  circulation  in  the  district,  with 
an  indication  of  the  place  where  the  original  returns  may  be  in- 
spected by  the  public. 

The  penalties  for  violation  of  the  law  are  extremely  severe. 
Any  person  guilty  of  a  corrupt  practice  is  liable  to  a  heavy 
fine  and  enfranchisement.  Any  candidate  guilty  of  committing 
a  corrupt  practice  is  punished  by  disqualification  forever  for 
membership  in  Parliament  from  the  district.  If  a  corrupt  prac- 
tice has  been  committed  by  his  agent  without  his  knowledge  or 
consent  he  is  disqualified  for  seven  years.  Any  candidate,  guilty 
directly  or  through  his  agent  of  an  illegal  practice,  is  punished  by 
disqualification  for  the  life  of  the  ensuing  Parliament.  Charges  of 
corruption  or  illegality  may  be  preferred  by  any  voter,  but  must 
be  prosecuted  at  the  instance  of  the  attorney-general.  The  trial 
takes  place  before  a  special  court  of  two  judges,  and  the  proceed- 
ings are  thoroughly  non-partisan.  The  act  has  wrought  a  revo- 
lution in  the  character  of  electoral  campaigns  in  Great  Britain. 
Prior  to  its  passage,  British  elections  were  notorious  for  their 
venality.  Money  was  used  lavishly,  corruption  was  brazen. 
In  some  districts  it  is  said  that  the  greater  part  of  the  voters 
were  under  pay  by  one  or  both  of  the  candidates.  Since  then, 
money  has  been  much  less  lavishly  used.  The  average  expense 
per  vote  cast  for  all  candidates  may  be  reckoned  at  about  one 
dollar.  Corruption  by  candidates  or  their  agents  has  been  re- 
duced to  trivial  proportions.  In  the  words  of  one  of  the  closest 
observers  of  British  politics:  "The  old  electoral  abuses  have 
been  very  much  reduced.  .  .  .  Bribery  in  England  is  disappear- 
ing. In  by  far  the  greatest  number  of  constituencies  it  does  not 


224       STATE  GOVERNMENT  IN  UNITED  STATES 

exist,  and  the  elections  are  on  the  whole  pure."  *  The  system  is 
doubtless  not  without  its  defects.  For  instance,  it  does  not  regu- 
late the  use  of  money  independently  by  private  persons  or  asso- 
ciations, such  as  tariff  reform  leagues  or  brewers'  associations. 
This  defect  grows  more  serious  as  the  political  activity  of  such 
associations  increases.  But  the  system  has  greatly  checked  the 
particular  evils  at  which  it  was  aimed,  and  has  clearly  demon- 
strated what  a  salutary  change  in  the  habits  of  men  can  be 
brought  about  by  wise  and  forceful  legislation. 

DIFFICULTIES  IN  REGULATING  USE  OF  MONEY  IN 
AMERICA 

The  merits  of  the  British  corrupt  and  illegal  practices  act  of 
1883  were  quickly  perceived  by  intelligent  Americans.2  The  need 
for  effective  legislation  against  similar  practices  in  American 
electoral  campaigns  was  a  matter  of  common  knowledge.3  It  was 
not  practicable,  however,  to  incorporate  the  British  act  bodily  into 
the  election  laws  of  the  American  states  and  obtain  the  same 
results  as  in  Great  Britain.  The  differences  between  the  British 
and  American  electoral  systems  are  too  fundamental. 

In  the  first  place,  a  general  election  in  an  American  state  is  a 
much  more  complex  operation  than  a  parliamentary  election  in 
Great  Britain.  In  Great  Britain  there  is  but  a  single  office  to  be 
filled  by  election  in  each  district.  The  candidate  for  Parliament 
is  the  sole  representative  of  the  cause  of  his  party  in  the  district. 
For  the  duration  of  the  campaign  his  personal  election  agent  is 
the  head  of  the  local  party  organization.  Usually,  indeed,  the 
candidate  selects  as  his  election  agent  the  secretary  of  the  local 
party  association.  The  interests  of  the  party  become  identified 
with  those  of  the  parliamentary  candidate.  In  an  American 
state  a  general  election  is  really  a  multitude  of  elections  held 
simultaneously.  There  are  many  offices  to  be  filled  by  election 
in  each  district.  No  one  candidate  for  office  is  exclusively  the 
representative  of  his  party.  All  candidates  on  the  same  party 

1  A.  L.  Lowell,  The  Government  of  England,  i,  237. 

1  See  W.  M.  Ivins,  Machine  Politics  and  Money  in  Elections  in  New  York  City, 
New  York,  1887. 

*  See,  for  example,  the  discussion  of  the  party  system  in  James  Bryce,  The 
American  Commonwealth  (ist  ed.). 


THE  CONDUCT  OF  ELECTIONS  225 

ticket,  from  presidential  electors  down  to  coroners,  are  served 
by  the  same  election  agents,  the  regular  party  committees.  The 
interests  of  the  party  are  not  identified  with  those  of  any  par- 
ticular candidate  for  office.  If  a  voter  is  bribed,  he  is  ordinarily 
bribed  to  vote  for  a  party,  not  for  a  single  candidate.  Corrup- 
tion generally  inures  to  the  benefit  of  all  candidates  on  the  same 
ticket.  Some  may  have  connived  at  it,  others  may  have  been 
ignorant  of  it,  or  may  even  have  opposed  it.  To  penalize  all  the 
beneficiaries  of  corruption,  as  in  England,  would  mean  to  void 
the  election  of  a  president  or  governor,  because  of  the  corrup- 
tion of  a  few  voters  in  a  single  district,  perhaps  primarily  in  the 
interest  of  a  local  candidate.  In  England  it  is  just  to  void  the 
election  of  the  candidate  for  Parliament  because  of  the  corrupt 
acts  of  his  election  agent,  since  the  agent  serves  that  candidate 
alone.  But  in  the  United  States  it  is  not  ordinarily  practicable 
to  trace  corruption,  for  which  a  party  committee  is  directly  re- 
sponsible, back  to  any  particular  candidate.  Party  committee- 
men  themselves  might  be  disqualified  for  future  service  as  com- 
mitteemen  or  as  public  officials.  Such  a  penalty  would  be 
appropriate  in  cases  where  the  committeemen  control  the  candi- 
dates. It  would  be  inadequate,  however,  in  cases  where  they  are 
merely  the  agents  of  the  party.  In  short,  the  multiplicity  of 
elective  offices  and  the  separation  of  party  management  from 
the  personal  fortunes  of  particular  candidates  make  the  preven- 
tion of  corrupt  practices  a  much  more  difficult  undertaking  in 
the  United  States  than  in  Great  Britain. 

Secondly,  in  the  United  States  the  process  of  nomination 
is  much  more  complicated  than  in  Great  Britain.  In  the 
latter  country  the  rivalry  for  parliamentary  nominations  is  much 
less  keen  than  that  for  most  elective  offices  in  the  United 
States.  The  personality  of  the  candidate  is  of  minor  im- 
portance. Primary  elections  are  unknown.  In  the  United 
States,  in  cases  where  nomination  is  equivalent  to  election,  the 
contests  for  nomination  cause  the  expenditure  of  more  money 
than  the  elections  themselves.  In  all  cases  where  nomina- 
tions are  attractive,  the  candidates  for  nomination,  unless  sup- 
ported by  party  organizations,  must  conduct  personal  campaigns 
before  the  primaries.  Primary  elections  tend  to  take  on  the  as- 
pect of  preliminary  general  elections.  Effective  corrupt  practices 


226        STATE  GOVERNMENT  IN  UNITED   STATES 

acts  in  this  country  must  regulate  the  expenditures  in  primary 
as  well  as  in  general  elections.  Moreover,  the  choice  of  party 
officials  is  an  integral  part  of  the  electoral  process  in  the  United 
States.  Like  the  nominations  for  public  office,  the  party  offices 
may  be  hotly  contested.  The  choice  of  delegates  to  the  principal 
conventions,  and,  in  states  where  party  committeemen  are  elected 
directly  by  the  rank  and  file  of  the  parties,  the  election  of  members 
of  the  principal  committees,  often  involve  the  decision  of  much 
more  momentous  issues  than  the  personality  of  the  candidates 
or  the  character  of  the  platforms  in  the  next  campaign.  In  a 
struggle  between  different  factions  for  the  control  of  a  party 
organization  the  whole  future  of  the  party  itself  may  be  at  stake. 
Special  interests  which  expect  to  profit  through  the  control  of 
the  organization  by  a  particular  faction  may  well  prefer  to  sacrifice 
temporary  success  at  the  polls  for  the  sake  of  maintaining  their 
grip  on  the  organization.  So  long  as  the  bipartisan  system  of 
politics  endures,  the  permanent  control  of  the  organization  is 
much  more  important  for  many  purposes  than  temporary  control 
of  the  government  itself.  Consequently  effective  corrupt  prac- 
tices acts  in  this  country  must  regulate  the  use  of  money  in  the 
election  of  party  committeemen  as  well  as  in  the  nomination  and 
election  of  public  officials. 

Thirdly,  the  regulation  of  the  sources  of  campaign  funds  is 
more  important,  as  well  as  more  difficult,  in  the  United  States 
than  in  Great  Britain.  In  the  latter  country  the  parliamentary 
candidate  is  as  a  rule  expected  to  finance  the  entire  campaign 
in  his  district.  That  is  one  reason  why  there  is  less  rivalry  for 
parliamentary  nominations  than  might  be  expected  by  an  Ameri- 
can. If  a  desirable  candidate  cannot  afford  to  finance  as  vigorous 
a  campaign  as  is  required,  he  may  be  assisted  by  a  grant  from 
the  central  campaign  fund  of  the  party.  Ordinarily  there  is 
little  of  that  effort,  so  characteristic  of  American  politics,  to 
finance  the  local  campaign  in  each  district  by  contributions  from 
those  who  expect  to  support  the  party's  candidates  at  the  polls 
or  hope  to  profit  in  some  way  by  their  success.  This  may  be  ex- 
plained partly  by  the  fact  that  party  organization,  except  in 
the  case  of  the  Labour  Party,  is  less  democratic  than  in  the  United 
States,  and  partly  by  the  fact  that  special  interests  cannot  hope  to 
profit  by  the  success  of  particular  candidates  to  such  an  extent 


THE  CONDUCT  OF  ELECTIONS  227 

as  in  the  United  States.  The  separation  of  politics  from  public 
administration  is  so  effectively  accomplished  in  Great  Britain  that 
opportunities  for  private  profit  through  the  favor  of  elective 
officials  are  much  rarer  than  in  the  United  States.  But  whatever 
be  the  explanation,  the  supply  of  funds  for  the  conduct  of  cam- 
paigns by  persons  who  are  not  themselves  candidates  for  election 
is  a  much  more  common  practice  in  the  United  States  than  in 
Great  Britain.  Just  as  the  expenditure  of  money  by  candidates 
may  exercise  an  undue  influence  over  voters,  so  the  contribution 
of  money  to  campaign  funds  by  special  interests  may  exercise  an 
undue  influence  over  candidates.  The  candidate  whose  election 
or  the  organization  whose  success  in  general  is  made  possible 
by  financial  support  from  railroads,  public  service  corporations, 
brewers,  or  saloon-keepers  is  hardly  more  disinterested  than  one 
who  has  accepted  an  acknowledged  retainer.  It  is  not  strange 
that  the  link  between  visible  and  "invisible"  government  was 
located  by  the  "muck-rakers"  in  the  methods  of  party  finance. 

AMERICAN  CORRUPT  PRACTICES  ACTS 

The  American  states  have  been  much  slower  to  follow  the  ex- 
ample of  Great  Britain  in  regulating  the  use  of  money  in  elections 
than  in  regulating  the  form  of  the  ballot.  Bribery  and  the  other 
forms  of  gross  corruption  have  always  been  penalized  here  as 
there.  But  prior  to  1890  there  was  no  recognition  in  any  Ameri- 
can state  of  what  the  English  law  of  1883  defined  as  illegal  prac- 
tices. In  that  year  the  same  group  of  reformers  who  had  been  the 
first  advocates  of  the  Australian  ballot  in  this  country  succeeded 
in  putting  through  the  first  feeble  imitation  of  the  English  corrupt 
and  illegal  practices  act.  The  demand  for  reform  was  strongest 
in  New  York  and  Massachusetts.  As  the  first  Australian  ballot 
law  was  enacted  in  Massachusetts,  so  the  first  modern  legislation 
for  the  regulation  of  the  use  of  money  was  enacted  in  New  York. 
The  New  York  law  of  1890  provided  merely  that  candidates  for 
election  should  file  a  return  after  the  close  of  the  campaign  show- 
ing the  nature  and  amount  of  their  expenditures  during  the  cam- 
paign. The  Massachusetts  law  of  1892  went  further,  providing 
that  no  candidate  should  pay  or  promise  any  money  to  promote 
his  election  except  for  personal  expenses  and  to  political  com- 


228       STATE  GOVERNMENT  IN  UNITED  STATES 

mittees.  Personal  expenses  were  defined  as  writing,  printing, 
and  distributing  letters,  circulars,  etc.,  stationery  and  postage, 
telegraph,  telephone  and  messenger  service,  traveling,  and  other 
petty  personal  services.  No  return  of  the  nature  or  amount 
of  personal  expenses  was  required.  In  addition,  voluntary  con- 
tributions might  be  made  in  any  amount  to  political  committees. 
A  political  committee  was  defined  as  any  three  or  more  persons 
acting  together  to  promote  the  success  or  defeat  of  a  party 
principle  or  candidate.  Every  political  committee  was  required 
to  have  a  treasurer,  through  whom  all  receipts  and  expenditures 
were  to  be  made.  Political  committees  might  receive  contribu- 
tions from  any  source  and  in  any  amount,  and  might  spend 
money  in  any  amount  for  any  lawful  purpose.  After  the  close  of 
the  campaign,  the  treasurer  was  required  to  file  a  return  with  a 
city  or  town  clerk,  provided  the  total  expenditures  exceeded 
twenty  dollars,  showing  in  detail  the  nature  and  amount  of 
all  expenditures  and  the  source  and  amount  of  all  contributions. 
Any  individual,  not  a  member  or  agent  of  a  political  committee, 
spending  more  than  twenty  dollars,  was  also  required  to  file  a 
return  of  expenditures. 

The  scope  of  this  early  legislation  was  manifestly  inadequate. 
Neither  the  New  York  nor  the  Massachusetts  law  imposed  any 
new  restrictions  upon  the  nature  of  political  expenditures. 
Neither  limited  their  amount.  Neither  could  afford  the  public 
any  real  protection  against  the  corrupt  use  of  money.  The  New 
York  candidate  could  easily  evade  the  New  York  law  by  making 
his  expenditures  through  political  committees.  The  Massa- 
chusetts candidate  could  easily  evade  the  law  in  his  state  by 
alleging  that  his  expenditures  were  personal.  The  definition  of 
personal  expenditures  was  so  broad  that  almost  any  expenditure 
was  covered.  The  means  of  enforcement  and  the  penalties  were 
equally  inadequate.  The  returns  were  merely  filed,  not  pub- 
lished, and  convictions  of  violation  of  the  acts,  if  anybody  were 
interested  to  secure  them,  would  have  been  exceedingly  difficult 
to  obtain.  The  penalties  were  comparatively  small  fines  or  short 
terms  of  imprisonment.  Despite  the  unpromising  character  of 
this  pioneer  legislation,  similar  laws  were  enacted  in  a  number  of 
states.  In  1893  Missouri  first  introduced  a  limitation  upon  the 
amount  of  expenditures  by  candidates  and  committees.  In  1897 


THE  CONDUCT  OF  ELECTIONS  229 

several  states  began  the  limitation  of  the  sources  of  campaign 
funds  by  prohibiting  contributions  from  corporations.  In  1903 
the  extension  of  the  principle  of  publicity  of  campaign  expendi- 
tures to  the  primaries  was  begun  in  the  South,  where  the  primaries 
were  the  most  important  phase  of  the  electoral  process.  Yet  it 
must  be  admitted  that  down  to  1904  legislation  providing  for 
publicity  in  the  financing  of  political  campaigns  had  accomplished 
little  for  the  purification  of  American  politics.  Less  than  half 
of  the  states  had  adopted  any  such  legislation.  Practically  all 
the  legislation  that  had  been  adopted  was  so  defective  in  scope 
or  in  means  of  enforcement  that  little  could  be  expected  from  it. 
Even  had  convictions  for  violations  been  practicable,  nobody 
was  interested  to  secure  convictions,  because  nobody  could  profit 
thereby.  Defeated  candidates,  even  if  their  own  hands  were 
clean,  could  not  immediately  profit  by  convicting  their  successful 
opponents  of  violations,  because  their  opponents  would  still  hold 
the  offices  to  which  they  had  been  elected.  They  could  never 
profit  by  such  convictions  unless  public  opinion  could  be  enlisted 
in  support  of  those  who  would  respect  the  law.  For  this  public 
opinion  seemed  unready.  It  is  not  surprising,  therefore,  that 
during  this  period  there  were  few  prosecutions  for  violations  of 
these  laws,  and  fewer  convictions. 

A  great  change  in  the  opinion  of  the  public  set  in  after  the  presi- 
dential election  of  1904.  There  were  four  causes  for  this  change. 
The  first  and  most  conspicuous  was  the  revelation  of  the  huge 
sums  of  money  contributed  in  recent  campaigns,  particularly 
that  of  1904,  by  large  corporations,  and  by  individuals  with  large 
corporate  connections.  The  revelation  of  the  contributions 
by  the  great  New  York  life  insurance  companies  made  the 
deepest  impression  upon  the  mind  of  the  public,  for  these  contri- 
butions consisted  of  money  which  in  a  way  was  the  policyholders' 
money  and  was  used  to  promote  causes  of  which  many  of  the 
policyholders  did  not  approve.  But  the  revelation  of  the  con- 
tributions made  by  certain  railroad,  traction,  and  financial  mag- 
nates was  equally  disquieting,  for  such  heavy  contributors  could 
not  fail  to  exercise  an  undue  influence  upon  the  party  organiza- 
tions which  they  supported.  Certain  corporate  interests,  indeed, 
were  found  to  support  both  organizations,  —  a  course  which 
could  not  but  seem  to  honest  party  men  utterly  unprincipled.  As 


Perry  Belmont,  treasurer  of  the  Democratic  national  committee 
and  one  of  the  heaviest  contributors  to  the  campaign  of  1904, 
observed:  "The  great  captains  of  industry  have  been  induced 
or  compelled,  or  they  have  permitted  themselves  on  one  pretext 
or  another,  to  endeavor  to  control  political  agencies  and  organiza- 
tions by  the  use  of  money."  *  The  people  were  now  becoming 
convinced  of  this  ugly  truth.  The  truth  frightened  them,  for 
it  meant  that  control  of  their  institutions  was  slipping  away 
from  them  into  the  hands  of  an  oligarchy  of  wealth. 

The  other  causes  of  the  change  in  public  opinion  were  no  less 
significant.  The  second  cause  was  clearly  indicated  by  the  chair- 
man of  the  Democratic  national  committee,  who  observed : 
"We  are  all  familiar  with  what  has  been  going  on  in  the  use  of 
money  in  state,  local,  and  national  campaigns.  We  all  know  that 
it  is  not  only  a  menace  to  the  country,  but  to  the  political  parties 
themselves."  2  And  the  party  leaders  were  bound  to  take  notice 
of  a  condition  that  menaced  the  parties.  Moreover,  campaign 
managers  were  finding  that  where  so  much  money  was  known  to 
be  available  for  political  purposes,  they  were  at  the  mercy  of  any 
unscrupulous  person  who  possessed  political  influence  and  wanted 
cash.  "People  who  accept  five,  ten,  or  one  hundred  dollars 
a  day  to  work  at  the  polls  would  not  accept  it,  if  there  was  danger 
of  its  being  made  public."  3  Thirdly,  the  growing  increase  in 
the  cost  of  elections  threatened  the  political  future  of  all  men 
who  could  not  command  the  necessary  funds.  As  President 
Gompers  of  the  American  Federation  of  Labor  observed :  "The 
use  of  money,  particularly  to  the  extent  it  has  been  used  in  the  last 
decade,  has  made  it  practically  impossible  for  a  wage  earner  to 
become  a  member  of  either  state  legislature  or  the  Congress  of  the 
United  States."  4  Finally,  the  large  contributors  themselves  were 
to  a  certain  extent  the  victims  of  the  evil  system  their  own  un- 
fortunate practices  had  fostered.  Compulsory  and  effective 
publicity,  it  was  pointed  out,  "gives  the  corporation  that  does 
not  want  to  contribute  an  excuse  for  not  giving,  and  a  majority 
of  them  in  my  opinion  are  practically  coerced  into  giving  —  black- 

1  Minutes  of  First  Meeting  of  National  Publicity  Bill  Organization,  Washington, 
January  17,  1906,  p.  3. 

*  Norman  E.  Mack,  loc.  cit.,  p.  u. 

1  Loc.  cit.,  p.  16.  4  Loc.  cit.,  p.  18. 


THE  CONDUCT  OF  ELECTIONS  231 

mailed,  in  fact."  1  In  the  face  of  attack  from  so  many  quarters 
the  traditional  American  system  of  secret  party  finance  had  to 
give  way. 

Effective  regulation  of  political  campaign  funds  requires  legis- 
lation by  Congress  as  well  as  by  the  state  legislatures.  Congress 
inaugurated  the  new  era  in  1907  by  prohibiting  all  corporations 
from  contributing  to  funds  used  to  promote  the  election  of  federal 
officers,  and  national  banks  and  corporations  engaged  in  interstate 
commerce  from  contributing  to  state  and  local  campaign  funds. 
It  took  the  next  step  in  1910  by  requiring  the  filing  after  the  close 
of  the  campaign  of  a  sworn  statement  of  receipts  and  expendi- 
tures by  national  and  congressional  committees  and  all  other 
political  committees  spending  money  in  two  or  more  states  for 
the  purpose  of  influencing  federal  elections.  In  1911  it  took  a 
further  and  much  more  important  step.  The  principle  of 
publicity  was  extended  to  contributions  and  expenditures  in  the 
primaries,  publicity  was  made  continuous  throughout  the  cam- 
paign instead  of  being  confined  to  a  single  statement  filed  after 
the  close  of  the  campaign,  and  the  amount  that  might  be  spent 
by  a  candidate  in  the  primary  and  general  election  campaigns 
together  was  limited  to  five  thousand  dollars  in  the  case  of  a  candi- 
date for  the  House  of  Representatives  and  to  ten  thousand 
dollars  in  the  case  of  a  candidate  for  the  Senate.  Meanwhile 
similar  legislation  was  being  enacted  by  the  states.  By  1911 
nearly  half  of  the  states  had  enacted  legislation  prohibiting  cam- 
paign contributions  by  corporations,  and  three-fourths  of  the 
states  had  enacted  legislation  providing  for  filing  returns  of 
contributions  and  expenditures.  Some  of  this  legislation  marked 
little  or  no  advance  over  the  pioneer  legislation  in  New  York 
and  Massachusetts.  Much  of  the  later  legislation,  however, 
was  of  a  more  effective  character. 

The  most  significant  of  the  later  acts  were  those  adopted  in 
Oregon  through  the  direct  popular  initiative  in  1908,  and  in  Wis- 
consin in  1911.  These  acts  go  much  further  than  any  previous 
legislation  in  the  American  states  in  regulating  the  nature  as  well 
as  the  amounts  of  campaign  expenditures.  In  both  respects  they 
marked  a  closer  approximation  to  the  English  model  than  the 
earlier  legislation  in  this  country.  The  Wisconsin  act  of  1911 

1  Ex-Congressman  Lamb,  loc.  cit.,  p.  17. 


232        STATE  GOVERNMENT  IN  UNITED  STATES 

is  most  clearly  based  upon  the  English  principle  that  all  expendi- 
tures are  illegal  except  those  expressly  authorized  by  law.  Ex- 
penditures by  candidates,  whether  in  connection  with  a  primary 
or  general  election,  are  prohibited  except  (a)  for  personal  hotel 
and  traveling  expenses ;  (b)  for  payments  to  the  state  required 
by  law;  (c)  for  contributions  to  duly  registered  personal  cam- 
paign committees ;  (d)  for  contributions  to  party  committees ; 
and  (e)  for  actual  personal  expenses  of  public  speakers.  No 
bills  or  claims  presented  later  than  ten  days  after  the  close  of  the 
campaign  are  to  be  paid.  No  payments  whatever  may  be  made 
on  account  of  services  rendered  on  primary  or  general  election 
day,  or  for  the  transportation  of  voters  to  the  polls. 

The  Wisconsin  act  of  1911  provides  for  periodic  returns  both  by 
candidates  and  by  committees  throughout  the  campaign,  and 
forbids  the  printing  of  a  candidate's  name  upon  the  ballot  unless 
the  proper  returns  have  been  filed.  Maximum  limits  are  placed 
to  the  amounts  that  may  be  spent  by  or  on  behalf  of  candidates 
for  nomination  and  election,  and  to  the  amounts  that  may  be 
spent  by  the  state  central  committees  in  excess  of  sums  paid  in 
on  behalf  of  candidates  and  included  in  the  statements  of  their 
personal  expenditures.  A  similar  though  less  drastic  limitation 
was  adopted  in  Massachusetts  in  1914,  when  maximum  limits  were 
placed  to  the  amounts  that  might  be  contributed  to  campaign 
funds  or  spent  for  campaign  purposes  by  persons  not  themselves 
candidates.  In  that  state,  however,  no  limit  was  placed  upon  the 
total  sums  that  might  be  raised  and  spent  by  the  state  central 
committees.  Charges  of  non-compliance  with  the  Wisconsin  law 
are  tried  before  a  special  election  court.  Conviction,  except  in 
the  cases  of  candidates  for  Congress  or  the  state  legislature,  is  to 
be  followed  by  forfeiture  of  office.  In  the  excepted  cases  a  record 
of  the  conviction  is  to  be  transmitted  to  the  appropriate  body 
for  such  action  as  that  body  may  choose  to  take.  The  excep- 
tions are  required  by  the  federal  and  state  constitutional  provi- 
sions that  Congress  and  the  state  legislatures  respectively  shall  be 
the  judges  of  the  election  and  qualifications  of  their  own  mem- 
bers. Trial  before  a  special  election  court  and  forfeiture  of  office 
in  case  of  conviction,  subject  to  the  exceptions  above  noted, 
are  also  provided  for  by  the  Oregon  legislation  of  1908  and  the 
Massachusetts  legislation  of  1914.  In  this  as  in  other  respects, 


THE  CONDUCT  OF  ELECTIONS  233 

however,  the  Wisconsin  act  is  much  in  advance  of  the  legisla- 
tion generally  adopted  in  the  states  as  well  as  of  that  adopted  by 
Congress. 

WORKING  OF  THE  CORRUPT  PRACTICES  ACTS 

Testimony  concerning  the  operation  of  the  American  corrupt 
practices  and  campaign  publicity  acts  is  conflicting.  Some 
of  those  who  ought  to  know  assert  that  the  laws  are  generally 
observed,  that  they  tend  to  reduce  the  cost  of  running  for  office, 
and  to  prevent  the  corrupt  use  of  money  in  elections.  Others 
assert  that  they  are  not  generally  observed,  that  they  have  not 
reduced  the  cost  of  running  for  office,  and  that  they  do  not  pre- 
vent the  corrupt  use  of  money  in  elections.  Their  chief  effect, 
according  to  the  hostile  critics,  where  they  produce  any  effect 
at  all,  is  to  encourage  the  practice  of  perjury.  This  conflicting 
testimony  can  be  partly  explained  by  the  fact  that  the  laws  are 
very  different  in  different  states,  some  being  much  more  defective 
than  others.  The  statutes  passed  during  the  earlier  period  of 
legislation  were  most  defective.  It  is  doubtful  whether  they  were 
generally  observed.  Certainly  they  did  not  reduce  the  cost  of 
running  for  office  nor  prevent  the  corrupt  use  of  money  in  elec- 
tions. They  were  often  held  in  open  contempt  by  candidates 
and  party  workers.  They  were  universally  disregarded  by 
non-political  associations,  having  occasion  to  expend  money  in- 
dependently in  political  campaigns,  notably  by  liquor  dealers' 
associations.  Some  of  the  later  statutes  ought  to  produce  better 
results.  The  period  since  the  enactment  of  the  best  of  them, 
such  as  the  Wisconsin  act  of  191 1  or  the  Massachusetts  act  of  1914, 
is  too  short  to  afford  a  complete  test  of  their  operation. 

It  is  clear,  however,  that  the  best  American  statutes  cannot  be 
expected  to  accomplish  so  much  for  the  purification  of  elections 
as  was  accomplished  by  the  British  act  of  1883.  There  are  so 
many  more  candidates  and  elections  in  this  country,  the  location 
of  responsibility  is  so  much  more  difficult,  and  the  attention  of 
the  public  is  subject  to  so  many  more  demands  during  campaigns, 
that  the  enforcement  of  laws  depending  mainly  upon  publicity 
and  public  opinion  for  their  effectiveness  is  far  less  easy  than  in 
Great  Britain.  In  some  respects  the  best  American  laws  are 


234       STATE  GOVERNMENT  IN  UNITED  STATES 

superior  to  the  British.  Continuous  publicity  throughout  the 
primary  and  election  campaign  should  be  more  effective  than 
publicity  after  the  campaign  has  closed.  On  the  other  hand,  the 
returns  under  the  British  act  must  be  published  in  full  in  at  least 
two  local  newspapers  at  the  expense  of  the  parties.  In  the  United 
States  returns  are  merely  filed  with  some  public  official.  The 
voters  know  nothing  of  their  contents  except  in  so  far  as  they 
may  be  voluntarily  informed  by  newspapers  or  public  speakers. 
Such  information,  at  least  during  the  campaign,  is  likely  to  be 
partisan  and  ineffective.  The  laws  of  the  American  states  are 
also  more  imperfect  than  the  British  act  with  respect  to  the  limi- 
tation of  the  objects  of  campaign  expenditures.  Few  of  them 
define  with  sufficient  accuracy  the  legitimate  objects  of  expenditure. 
This  is  necessary  to  prevent  evasion.  Very  few  absolutely  forbid 
the  expenditure  of  money  on  the  day  of  election.  This  is  indis- 
pensable to  the  purification  of  elections.  The  most  important 
aspect  of  these  laws  is  their  enforceability  in  the  courts  by 
prosecution  for  violations.  Few  of  them  make  any  effective  pro- 
vision for  such  enforcement.  Those  few  fail  to  deal  effectively 
with  candidates  for  legislative  office.  In  general,  responsibility 
for  violations  of  the  laws  cannot  be  fixed  with  such  certainty 
as  in  Great  Britain.  Hence  the  severe  penalties  enforced  in  Great 
Britain  are  probably  impracticable  in  national  and  state  elections 
here.  They  will  remain  impracticable,  so  long  as  the  American 
electoral  system  remains  as  complex  as  at  present. 

Some  good  results  of  the  recent  legislation  nevertheless  may 
already  be  detected.  There  has  undoubtedly  been  a  decrease 
in  the  contribution  of  funds  to  political  campaigns  by  large  cor- 
porations and  corporate  interests.  This  was  clearly  revealed 
by  the  investigations  of  the  special  sub-committee  of  the  United 
States  Senate  Committee  on  Privileges  and  Elections  during  the 
presidential  campaign  of  1912.  The  immediate  effect  has  been 
to  diminish  the  total  amount  of  the  campaign  funds  raised  by  the 
regular  party  committees  and  to  increase  the  efforts  of  campaign 
committees  to  raise  funds  by  popular  subscription.  The  ulti- 
mate effect  must  be  to  popularize  party  finance  to  an  extent  that 
would  have  seemed  visionary  to  politicians  of  the  period  of  Mark 
Hanna  and  Matthew  S.  Quay.  The  popularization  of  party 
finance  means  the  democratization  of  party  management.  It 


THE  CONDUCT  OF  ELECTIONS  235 

means  the  curbing  of  the  power  of  "invisible"  government,  so 
far  as  that  power  arises  from  its  financial  support  of  the  party 
organizations.  It  is  doubtful,  however,  whether  the  total  expendi- 
ture of  money  in  campaigns  has  been  diminished.  The  increased 
reliance  of  candidates  upon  personal  campaigns  and  the  increased 
need  for  publicity  on  a  large  scale,  resulting  from  the  introduction 
of  the  direct  primary  and  the  awakening  of  public  interest  in  the 
business  of  party  management,  have  created  an  increased  demand 
for  legitimate  campaign  expenditures .  This  increased  demand  can 
only  be  met  by  increased  contributions  by  the  candidates  them- 
selves, or  by  their  followers  and  personal  friends.  The  increased 
expenditure  of  money  by  personal  campaign  committees  hi  prima- 
ries and  elections  may  more  than  offset  the  decrease  in  expendi- 
tures by  the  regular  party  committees.  The  legitimate  expense 
of  running  for  office  to-day,  except  in  the  states  where  a  limit 
is  fixed  by  effective  legislation,  is  probably  greater  than  ever 
before.  It  is  certainly  greater  for  candidates  without  organized 
support,  compelled  to  finance  their  own  fight  for  nomination 
and  election.  It  might  be  supposed  that  the  increase  in  the  legiti- 
mate demands  for  money,  combined  with  the  increased  difficulty 
of  raising  campaign  funds,  would  tend  to  reduce  the  amounts 
available  for  illegitimate  uses.  It  may  be  surmised  that  the  use 
of  money  for  corrupt  purposes,  at  least  in  national  and  state 
campaigns,  has  diminished  in  recent  years.  But  this  cannot  yet 
be  proved. 

Much  remains  to  be  done  before  the  methods  of  conducting 
campaigns  can  be  regarded  as  satisfactory.  The  problem  of 
dealing  with  the  grosser  forms  of  corruption  has  existed  from  the 
beginning  of  popular  government  and  can  never  be  solved  by 
legislation  alone.  But  some  of  the  newer  problems  arising  out 
of  the  growing  complexity  of  modern  civilization  can  be  dealt 
with  effectively  by  prudent  legislation.  Particularly  the  prob- 
lem of  the  use  of  money  for  legitimate  campaign  purposes  needs 
further  study  in  the  light  of  modern  electoral  conditions.  It  is 
clear  that  unless  some  limit  is  placed  on  the  amounts  that  may 
be  spent  by  individuals,  whether  candidates  or  not,  rich  men 
will  possess  an  undue  advantage  over  poor  men  in  politics.  It 
is  equally  clear  that  if  excessively  low  limits  are  placed  upon  the 
use  of  money  for  legitimate  purposes,  the  candidates  with  news- 


236       STATE  GOVERNMENT  IN  UNITED  STATES 

paper  support  or  strong  organizations  behind  them  will  possess  an 
undue  advantage  over  their  opponents.  Hearst  with  his  papers 
and  Tammany  with  its  organization  are  much  less  dependent 
upon  campaign  funds  than  the  reformers  can  ordinarily  hope 
to  be.  Then  there  is  the  interest  of  the  voters  to  be  considered. 
If  no  limit  is  placed  on  the  amounts  that  may  be  spent  in  cam- 
paigns, they  may  be  unduly  subject  to  corrupt  influences.  But 
if  the  limits  are  excessively  low,  they  may  be  deprived  of  due  in- 
formation concerning  the  nature  of  the  issues  and  the  merits  of 
the  candidates. 

FURTHER  REGULATION  OF  THE  USE  OF  MONEY 

Compared  with  the  limits  imposed  by  the  British  act  of  1883, 
the  limits  imposed  upon  the  amount  of  expenditures  for  legiti- 
mate purposes  by  many  American  states  seem  unduly  low. 
Thus  the  Oregon  law  of  1908  permits  the  candidate  to  spend  not 
more  than  twenty-five  per  cent  of  the  salary  of  the  office  sought 
by  him.  The  candidates  for  governor  may  accordingly  spend 
$1250  each,  whilst  candidates  for  minor  offices  on  the  state  ticket, 
who  secure  much  less  free  publicity  from  the  newspapers,  must 
finance  their  campaign  with  smaller  sums.  The  gubernatorial 
candidate's  allowance  works  out  to  about  one  half  of  a  cent  per 
voter.  In  California  the  law  of  1909  permitted  the  expenditure 
of  $250  for  the  first  five  thousand  voters  in  a  district,  two  dollars 
for  each  additional  one  hundred  voters  up  to  25,000,  one  dollar 
for  each  further  one  hundred  up  to  50,000,  and  fifty  cents  for  each 
one  hundred  voters  thereafter.  At  that  rate  a  gubernatorial 
candidate  could  now  spend  a  little  over  five  thousand  dollars. 
This  sum  would  enable  him  to  send  a  postal  card  to  about  half 
of  the  male  voters  of  the  state,  but  nothing  at  all  to  the  female 
voters.  These  limits  seem  absurdly  low  compared  with  those 
fixed  by  the  British  act.  So  they  would  be,  if  the  candidates  for 
governor  alone  were  considered.  But  an  American  campaign 
is  financed  by  the  joint  expenditures  of  all  the  candidates  for 
all  the  offices,  national,  state,  and  local,  supplemented  by  the  sums 
raised  from  other  sources  by  the  party  committees.  The  total 
expenditure  in  British  elections  averages  about  one  dollar  per 
vote  cast.  The  total  expenditure  here  is  unknown.  The  in- 


THE  CONDUCT  OF  ELECTIONS  237 

vestigations  of  the  subcommittee  of  the  Senate  Committee  on 
Privileges  and  Elections  in  1912,  taken  together  with  what  is 
known  about  expenditures  by  local  candidates,  show  that  in 
localities  where  the  contest  is  close  the  total  expenditure  per  vote 
cast  must  generally  far  exceed  the  total  in  a  British  campaign. 

The  heaviest  single  item  in  the  cost  of  campaigns  is  the  cost  of 
getting  out  the  vote  on  primary  and  election  day.  The  proposal 
is  not  infrequently  made  that  this  item  could  be  greatly  reduced 
by  making  voting  compulsory,  that  is,  by  penalizing  those  who  fail 
to  vote.  It  is  argued  that  if  the  voter  were  subject  to  a  small  fine 
for  failure  to  exercise  his  franchise,  the  party  organizations  would 
not  be  put  to  so  much  trouble  and  expense  in  getting  him  to  the 
polls.  This  argument  overlooks  two  important  considerations. 
First,  there  may  be  a  good  reason  for  failure  to  attend  the  polls. 
The  voter  may  be  absent  from  the  locality  in  which  his  right  to 
vote  must  be  exercised.  Absence  may  result  from  the  nature  of  his 
occupation,  as  in  the  case  of  fishermen,  sailors,  actors,  commercial 
travelers,  and  railroad  employees,  or  from  the  removal  of  his 
actual  residence  when  it  is  too  late  to  change  his  legal  residence 
also  before  the  next  election.  Absence  may  also  result  from 
physical  disability,  and  from  opposition  or  even  mere  indifference 
to  all  the  candidates  who  have  any  chance  of  election.  Secondly, 
voters  who  would  be  induced  to  attend  the  polls  solely  by  the 
prospect  of  a  small  fine  for  absence  are  not  the  kind  who  are 
wanted  at  the  polls.  The  indifferent  voter  should  be  cured  of 
his  indifference  by  a  wider  diffusion  of  political  intelligence  and 
more  effective  methods  of  campaigning.  The  mercenary  voter 
is  not  wanted  at  all.  A  small  fine  would  not  discourage  the  neg- 
lect of  electoral  duties  by  any  voters  except  those  to  whom  the 
fine  would  seem  big.  What  is  needed  is  a  plan  which  will  en- 
courage voting  by  those  who  would  not  be  influenced  by  the  pros- 
pect of  a  small  fine.1 

There  are  several  better  proposals  for  reducing  the  cost  of 
political  campaigns  than  that  of  compulsory  voting.  One  is 
the  improvement  of  election  machinery.  Absent  voters  should 
be  permitted  to  vote  by  mail,  or  at  the  nearest  voting-place, 
wherever  they  may  be,  or  in  advance  before  they  leave  home. 

1  See  A.  B.  Hart,  The  Exercise  of  the  Suffrage,  in  Practical  Essays  in  American 
Government. 


238       STATE  GOVERNMENT  IN  UNITED  STATES 

Each  of  these  methods  has  been  tried  in  some  American  state. 
Moreover,  where  periodic  registration  is  required,  the  voter 
should  be  permitted  to  register,  if  necessary,  while  away  from 
home.  Another  good  proposal  is  the  prohibition  of  all  payments 
by  candidates  or  political  parties  for  services  rendered  on  election 
day,  and  the  assumption  by  the  state  of  those  election-day  ex- 
penses which  are  necessary  and  proper.  Thus,  the  state  already 
assumes  the  entire  cost  of  printing  and  distributing  the  ballots,  — 
a  heavy  item  to  candidates  and  parties  before  the  introduction 
of  the  Australian  ballot.  It  should  also  assume  the  cost  of  trans- 
porting to  the  polls  all  voters  who  really  need  such  assistance.  A 
larger  use  of  public  buildings  for  political  meetings  is  also  possible 
and,  if  necessary,  halls  might  be  provided  at  public  expense  for 
the  conduct  of  rallies.  A  few  states,  led  by  Oregon  and  Wis- 
consin, have  undertaken  the  publication  and  distribution  of 
official  campaign  bulletins  in  order  that  candidates  and  parties 
may  make  at  least  one  statement  to  every  voter  at  the  least 
possible  cost.  These  pamphlets  are  usually  published  once 
before  the  primary  and  once  between  the  primary  and  election, 
and  contain  copies  of  the  party  platforms,  campaign  lives  and 
portraits  of  the  candidates,  and  other  matter.  Only  two  states 
have  yet  appropriated  public  money  directly  to  the  use  of  political 
parties.  In  Colorado  a  law  enacted  in  1909  granting  a  sum  to 
each  party  in  proportion  to  its  voting  strength  was  declared  un- 
constitutional. In  Oregon  the  presidential  primary  law,  adopted 
in  1910,  provided  that  the  delegates  to  national  conventions, 
chosen  to  express  the  preference  of  the  voters  of  the  state  between 
the  candidates  for  the  presidential  nominations,  should  receive 
their  necessary  traveling  expenses  from  the  state. 

How  far  the  state  should  go  in  financing  political  campaigns  can- 
not be  determined  upon  any  general  principles.  The  American 
states  already  go  much  further  than  Great  Britain.  To  the  pay- 
ment by  the  state  of  the  cost  of  printing  the  ballots  and  of  conduct- 
ing the  election  itself,  there  is  now  no  objection.  Yet  those 
expenses  are  borne  by  the  candidates  in  Great  Britain  and  once 
were  so  borne  here.  If  the  political  party  is  to  be  treated  as  one 
of  the  organs  of  government,  as  is  implied  in  the  legal  regulation 
of  the  process  of  nomination,  the  use  of  public  money  for  partisan 
purposes  can  be  justified  as  a  public  use.  How  much  public  money 


THE  CONDUCT  OF  ELECTIONS  239 

should  be  so  used  would  depend  upon  how  much  private  money 
candidates  and  party  organizations  are  to  be  permitted  to  use. 
That  in  turn  depends  in  part  upon  such  factors  as  the  number 
of  offices  to  be  filled  by  election  at  any  one  time,  the  size  of  elec- 
tion districts,  and  the  nature  of  the  electoral  process.  Thus  the 
question  of  the  use  of  money  in  elections  and  campaigns,  like  so 
many  other  political  questions,  cannot  be  settled  by  itself  alone. 


CHAPTER  IX 

THE   STATE  LEGISLATURES 

THE  constitutional  history  of  the  states,  as  has  been  previously 
shown,  reveals  two  principal  tendencies  in  the  development  of 
the  legislatures :  the  standardization  of  form  and  the  limitation 
of  powers.  The  standard  form  is  the  bicameral.  Each  state 
now  has  a  legislature  consisting  of  two  separate  houses.  No  legis- 
lation can  be  enacted  without  the  separate  consent  of  each  house. 
The  powers  of  the  two  houses  have  been  strictly  limited.  So 
far  as  the  enactment  of  ordinary  legislation  is  concerned,  the 
limitations  upon  the  two  houses  are  the  same.  This  is  true  of 
the  limitations  both  upon  legislative  powers  and  legislative  pro- 
cedure. There  is  only  one  exception.  The  power  to  originate 
money  bills  is  generally  conferred  exclusively  upon  the  lower 
house.  The  power  to  amend  such  bills,  however,  is  vested  in  the 
upper  house.  Under  the  guise  of  amendments  the  upper  house 
can  originate  such  bills  almost  as  freely  as  if  the  power  were 
expressly  granted.  Regarded  simply  as  legislative  bodies,  there- 
fore, the  two  houses  possess  substantially  equal  authority.  The 
executive  powers  conferred  upon  the  legislatures  are  vested 
chiefly  in  the  upper  houses.  The  power  of  appointing  executive 
and  judicial  officers,  possessed  so  extensively  by  the  first  state 
legislatures,  has  been  largely  taken  away.  The  power  of  con- 
firming executive  appointments,  originally  vested  in  special 
executive  councils,  has  been  transferred  to  the  upper  houses 
alone.  The  judicial  powers  of  the  legislatures  remain  divided 
between  the  two  houses  as  originally  planned.  The  lower  houses 
possess  the  sole  power  to  impeach;  the  upper  houses,  to  try 
impeachments.  Whilst  the  vesting  of  the  power  of  confirming 
executive  appointments  and  trying  impeachments  in  the  upper 
houses  would  seem  to  indicate  a  greater  degree  of  confidence  in 
those  bodies,  no  such  partiality  has  been  shown  with  reference 

240 


THE  STATE  LEGISLATURES  241 

to  the  exercise  of  purely  legislative  powers.     With  respect  to 
these  the  two  houses  have  been  treated  alike. 

The  principal  questions  that  now  arise  are  these.  First,  is 
the  bicameral  system  the  best  system  under  existing  conditions  ? 
Secondly,  has  the  limitation  of  powers  proceeded  as  far  as  is 
necessary  and  proper,  or  should  the  powers  of  the  legislatures  be 
further  limited  ? 

THE  BICAMERAL  SYSTEM 

The  bicameral  system,  as  has  been  shown,  was  originally 
advocated  on  a  number  of  grounds.  These  are  all  reducible, 
however,  to  two  principal  grounds.  The  first  is  that  the  legisla- 
tive branch  of  the  government  should  represent  the  whole  people, 
not  merely  a  majority.  Under  a  representative  system  by  which 
each  man  has  one  vote  and  representatives  are  chosen  directly 
by  a  majority  of  voters  in  local  electoral  districts,  the  body  so 
chosen  is  likely  to  represent  merely  a  majority  of  the  people. 
Those  who  cast  their  votes  for  unsuccessful  candidates  have  no 
respresentative  of  their  own  choosing.  They  may  be  represented 
indirectly  by  successful  candidates  in  other  districts,  provided 
that  the  classes  of  voters  who  are  in  a  minority  in  some  districts 
are  in  a  majority  in  other  districts.  But  if  there  is  any  class  of 
voters  which  is  in  a  minority  in  all  districts,  that  class  will  be 
entirely  excluded  from  any  share  in  the  representation.  Now 
an  aristocracy,  whether  it  be  one  of  birth,  or  wealth,  or  intellect, 
or  character,  is  always  in  a  minority.  If  it  is  not  in  a  minority, 
it  is  not  an  aristocracy.  Sanguine  democrats,  like  Jefferson, 
believed  that  the  majority  in  each  locality  would  naturally 
choose  the  best  men  for  their  representatives.  Less  sanguine 
men,  like  Adams  and  Jay,  believed  that  the  majority  would 
choose  men  of  their  own  sort.  They  feared  that  the  aristocracy 
would  not  be  properly  represented  under  a  system  of  unbalanced 
majority  rule.  They  advocated  the  bicameral  system,  in  order 
that  the  aristocracy  might  have  special  representation  in  a  sepa- 
rate house.  Thus  the  senates  would  represent  the  minority. 
The  lower  houses  would  represent  the  majority.  The  legisla- 
tures as  a  whole  would  represent  the  people  as  a  whole.  For 
practical  purposes,  however,  the  defenders  of  aristocracy  accepted 
wealth  as  the  test  of  aristocracy.  Their  senates  were  designed 


242        STATE   GOVERNMENT  IN  UNITED  STATES 

to  protect  the  rich  against  the  poor.  If  the  separate  assent  of 
both  houses  were  required  for  the  enactment  of  laws,  there  could 
be  no  legislation  which  was  not  acceptable  to  the  rich  as  well  as 
to  the  poor. 

In  most  of  the  original  states  this  form  of  the  aristocratic 
theory  of  government  was  rejected.  Not  all  men  were  con- 
sidered fit  to  vote,  but  all  who  were  considered  fit  were  permitted 
to  vote  for  both  senators  and  representatives  on  equal  terms. 
The  bicameral  system  was  accepted  because  it  was  believed  to 
insure  a  more  deliberate  procedure  in  the  enactment  of  laws. 
Hasty  and  ill-considered  legislation,  unnecessary  and  corrupt 
legislation,  was  believed  to  have  less  chance  of  passing  two 
houses  than  one  alone.  Senators  might  be  required  to  possess 
higher  qualifications  with  respect  to  experience,  even  with  re- 
spect to  wealth.  They  might  even  be  chosen  by  a  different  elec- 
toral process.  But  they  were  generally  chosen  by  the  same  elec- 
torates as  the  representatives.  They  were  expected  to  review 
the  acts  of  the  lower  house  with  a  jealous  eye,  but  not  to  thwart 
the  will  of  the  majority  of  the  people. 

METHODS  OF  LEGISLATIVE  APPORTIONMENT 

It  is  necessary  to  inquire,  first,  whether  the  former  reason  for 
the  bicameral  system  justifies  the  maintenance  of  the  state  legis- 
latures in  their  present  form.  The  existing  legislatures  consist 
as  a  rule  of  an  upper  house  of  from  thirty  to  fifty  members  and 
a  lower  house  of  from  fifty  to  one  hundred  and  fifty.1  In  most 
states  the  members  of  the  lower  house  are  from  two  to  three 
times  as  numerous  as  the  members  of  the  upper.2  Thus  the 
senates  are  more  select  bodies  than  the  lower  houses.  The 
greater  dignity  of  the  senates  is  further  secured  in  a  majority  of 
the  states  by  the  choice  of  senators  for  longer  terms  than  repre- 
sentatives. In  many  states,  however,  senators  and  representa- 

1  The  smallest  senate  is  that  of  Delaware  with  seventeen  members ;   the  largest, 
that  of  Minnesota  with  sixty-three.    The  smallest  lower  houses  are  those  of  Dela- 
ware and  Arizona  with  thirty-five  members  each ;  the  largest,  those  of  New  Hamp- 
shire and  Connecticut  with  402  and  258  respectively. 

2  In  two  states,  Arizona  and  Colorado,  they  are  less  than  twice  as  numerous.    In 
Vermont,  on  the  other  hand,  they  are  more  than  eight,  and  in  New  Hampshire  more 
than  fifteen  times  as  numerous. 


THE  STATE  LEGISLATURES  243 

tives  are  chosen  for  identical  terms,  generally  two  years.  Differ- 
ences in  the  electorates  of  the  two  houses,  in  the  qualifications  of 
their  members,  and  in  the  process  of  election,  so  far  as  they  ever 
existed,  have  generally  been  abolished.  At  present,  therefore, 
in  most  states  the  principal  differences  in  the  character  of  the 
two  houses  result  chiefly  from  differences  in  their  size  and  in  the 
manner  of  apportioning  their  members. 

The  basis  of  representation  in  the  lower  houses  of  the  legisla- 
tures, except  in  New  England,  is  the  county.  The  simplest  form 
of  county  representation  is  that  whereby  each  county  is  a  sepa- 
rate representative  district.  The  total  number  of  representa- 
tives is  apportioned  among  the  counties  as  nearly  as  possible  in 
proportion  to  population,  but  no  county  receives  less  than  one 
representative.  The  representatives  from  each  county  are 
elected  in  the  county  at  large.  Such  a  system  of  representation 
prevails  in  most  of  the  southern  states  and  in  several  of  the 
northern  and  middle  western  states,  notably  in  New  Jersey,  Ohio, 
and  Iowa.  In  the  more  sparsely  settled  states,  it  is  not  possible 
to  give  separate  representation  to  each  county  without  making 
the  lower  house  too  large  or  the  representation  of  the  people  too 
unequal.  In  such  states  counties  may  be  grouped  together,  if 
necessary,  to  form  a  single  district.  Sometimes  a  comparatively 
populous  county  is  entitled  to  one  representative  of  its  own  and 
is  grouped  with  other  counties  for  the  purpose  of  choosing  an- 
other representative.  In  a  few  states  where  the  county  serves 
as  the  representative  district,  notably  Louisiana *  and  Maryland, 
populous  urban  counties  are  subdivided  into  special  electoral  dis- 
tricts for  the  choice  of  representatives.  In  nearly  a  dozen  states 
the  practice  has  been  adopted  of  dividing  the  whole  state  into 
special  electoral  districts,  as  nearly  as  possible  equal  in  popu- 
lation, returning  one  member  each.  In  some  of  these  states, 
however,  each  county  comprises  at  least  one  district.  In  others 
counties  may  be  grouped  as  well  as  divided  in  order  to  form  equal 
single-member  districts.  In  New  England  the  town  is  the  basis 
of  representation.  The  systems  of  apportionment,  however,  are 
as  diverse  as  in  other  parts  of  the  country.  In  Massachusetts, 
for  example,  the  local  communities  are  divided  or  grouped 
together  as  may  be  necessary  in  order  that  the  people  may  be 

1  In  Louisiana  the  parish  is  the  local  equivalent  of  the  county. 


244       STATE  GOVERNMENT  IN  UNITED  STATES 

represented  as  nearly  as  possible  according  to  their  numbers. 
In  Connecticut  and  Vermont,  on  the  other  hand,  the  old  colonial 
practice  by  which  each  town  or  city,  regardless  of  its  size,  sends  an 
equal  number  of  representatives,  still  prevails  almost  unchanged. 
The  basis  of  representation  in  the  upper  houses  is  more  uni- 
form. In  most  states  single-member  districts  are  formed  by 
grouping  or  dividing  counties,  generally  with  a  view  to  approxi- 
mate equality  of  population.  In  a  few  states,  of  which  Ohio  is 
the  most  notable,  populous  counties,  entitled  to  more  than  one 
senator,  are  not  divided  into  single-member  districts.  In  such 
counties,  senators  like  representatives  are  elected  at  large.  In  a 
very  few  states,  of  which  New  Jersey  is  the  most  notable,  each 
county  is  entitled  to  an  equal  number  of  senators,  regardless  of 
population.  In  some  states  the  apportionment  of  senators  and 
representatives  is  based  upon  the  distribution  of  some  special 
class  of  persons,  rather  than  upon  that  of  the  total  population. 
Thus  in  New  York  it  is  based  upon  the  distribution  of  citizens, 
regardless  of  the  alien  population.  In  certain  southern  states 
it  is  based  on  the  distribution  of  qualified  electors,  regardless  of 
the  negro  population.  Except  in  a  few  of  the  oldest  and  smallest 
states,  a  reapportionment  of  members  is  made  by  each  legisla- 
ture every  ten  years.  Some  states  place  constitutional  restric- 
tions upon  the  power  of  apportionment,  requiring  that  legislative 
districts  be  as  compact  in  form  and  as  nearly  equal  in  size  as 
practicable.  Two  of  these  states  expressly  provide  for  the  judi- 
cial review  of  legislative  apportionments  for  the  correction  of 
errors,1  and  doubtless  in  others  the  courts  have  the  power  to 
set  aside  arbitrary  and  unreasonable  apportionments. 

WORKING  OF  METHODS  OF  APPORTIONMENT 

It  is  apparent  that  the  existing  standard  form  of  legislature 
cannot  be  justified  on  the  ground  that  it  represents  the  whole 
people.2  The  lower  house  does  in  most  cases  represent  the  ma- 

1  New  York  and  Oklahoma. 

1  The  two  houses  certainly  do  not  afford  separate  representation  to  the  rich  and 
poor.  The  only  difference  between  the  two  houses  tending  to  make  one  more 
representative  of  the  rich  than  the  other  is  the  difference  in  size.  From  this  it  fol- 
lows that  in  most  states  senators  are  chosen  in  larger  districts  than  representatives. 
Hence  the  cost  of  election  is  likely  to  be  greater.  To  a  certain  extent  this  greater 


THE  STATE  LEGISLATURES  245 

jority,  as  it  was  intended  to  do.  The  upper  house,  however, 
does  not  represent  the  minority.  It  also  represents  the  majority. 
Indeed,  the  principal  effect  of  the  maintenance  of  an  upper  house 
is  to  give  the  majority  party  a  stronger  hold  on  the  state  govern- 
ment than  it  would  have,  if  there  were  no  upper  house.  Since 
the  upper  houses  are  smaller  than  the  lower,  their  members  are 
usually*  chosen  in  larger  electoral  districts.  Now  the  larger  the 
electoral  districts  into  which  a  state  may  be  divided,  the  more 
favorable  the  results  of  elections  will  be  to  the  majority  party. 
There  are  two  reasons  for  this.  First,  the  effect  of  any  system 
of  representation  based  upon  plurality  elections  in  local  districts 
is  to  magnify  the  importance  of  the  majority.  Writers  upon  the 
subject  of  proportional  representation  have  frequently  pointed 
this  out,  and  quote  copious  statistics  to  prove  it.  It  is  obvious 
without  statistical  proof.  If  all  the  representatives  of  the  people 
were  chosen  on  a  general  ticket  in  the  state  at  large,  all  would 
be  chosen  by  the  majority.  This  is  what  happens  under  the 
present  system  of  choosing  presidential  electors.  The  smaller 
the  districts,  the  more  closely  the  distribution  of  representatives 
among  the  several  parties  corresponds  to  the  relative  popular 
strength  of  the  parties.  In  a  state  where  the  majority  party  is 
strong,  comprising,  say,  55  to  60  per  cent  of  the  total  vote,  it 
may  secure  all  the  representatives  in  Congress,  nearly  all  the 
state  senators,  and  more  than  its  share,  though  not  so  much 
more,  of  the  members  of  the  lower  house.  Secondly,  the  dispro- 
portionate representation  of  the  majority  party  may  be  further 
enhanced  by  the  practice  of  gerrymandering.  A  gerrymander  is 
an  arrangement  of  electoral  districts  which  enables  the  majority 
party  to  carry  the  greatest  possible  number  of  districts  with  the 
least  possible  number  of  votes.  The  larger  the  districts  into 
which  a  state  is  to  be  divided,  the  greater  the  possibility  of  the 
gerrymander.  Willful  and  deliberate  discrimination  against  the 
minority  party  is  consequently  most  notorious  in  the  formation 
of  congressional  districts.  A  gerrymander,  however,  may  be 
perpetrated  in  the  interest  of  particular  individuals  as  well  as  in 
that  of  the  majority  party.  In  fact  one  of  the  most  grotesque 

cost  of  election  may  serve  as  a  property  qualification  for  senators.  In  most  states 
this  tendency  cannot  be  of  great  importance.  A  more  important  consequence  of 
the  difference  in  size  is  the  effect  upon  the  representation  of  parties. 


246        STATE  GOVERNMENT  IN   UNITED  STATES 

congressional  gerrymanders  of  recent  years  was  perpetrated  in 
South  Carolina,1  where  discrimination  against  the  minority  party 
could  hardly  have  been  an  object. 

The  over-representation  of  the  majority  party  in  the  state 
legislatures  is  consistently  defended  by  the  supporters  of  the 
existing  bipartisan  political  system.  Since  ours  is  a  government 
by  parties,  it  is  urged,  it  is  necessary  that  the  governing  party 
possess  power  commensurate  with  its  responsibility.  So  long  as 
the  people  look  to  the  majority  party  to  carry  out  the  program 
to  which  it  has  pledged  itself  in  its  platform,  the  people  must 
trust  the  majority  party  with  adequate  control  of  the  legislative 
machinery.  Frequently,  however,  a  majority  party  comprises 
but  a  slight  majority  of  the  total  number  of  voters.  Sometimes 
the  vote  cast  for  its  candidates  may  even  be  less  than  a  majority 
of  the  total  vote.  Unless  the  majority  party  could  s^,ure  a  dis- 
proportionate share  of  the  seats  in  the  legislature,  a,  compara- 
tively few  members  would  hold  the  balance  of  power.  In  close 
states  a  majority  party  which  possessed  no  more  than  its  pro- 
portionate share  of  representatives  would  have  a  slender  and 
dubious  hold  upon  the  legislature.  In  order  to  possess  an  effi- 
cient working  majority,  the  party  must  have  not  only  a  bare 
majority,  but  also  a  margin  of  safety.  In  short,  the  system  of 
government  by  party  requires  that  the  majority  party  have 
effective  control  of  the  legislature.  Ordinarily  in  close  states 
effective  control  cannot  be  secured  without  over-representation. 
Whether  such  a  system  is  a  good  system  depends  upon  the  man- 
ner in  which  the  majority  party  uses  its  power.  Certainly  it  is 
not  the  system  contemplated  by  the  framers  of  the  original  state 
constitutions. 

A  secondary  effect  of  the  bicameral  system  is  to  facilitate  dis- 
crimination in  the  apportionment  of  representatives  against  the 
inhabitants  of  the  large  cities.  Discrimination  against  the  large 
cities  may  be  accomplished  in  various  ways.  Since  the  total 
number  of  senators  and  representatives  is  usually  fixed  in  the 
state  constitution,  a  requirement  that  each  county  receive  at 
least  one  senator  or  representative  will  generally  give  to  the  less 
populous  counties  more  than  their  proportionate  share  of  the 
total  number.  Such  a  requirement  actually  produces  under- 

1  See  J.  R.  Commons,  Proportional  Representation  (zd  ed.),  p.  55- 


THE  STATE  LEGISLATURES  247 

representation  of  the  large  cities  in  one  or  both  houses  in  a  con- 
siderable number  of  states.  The  requirement  that  each  county 
receive  an  equal  number  of  senators  or  representatives  produces 
a  much  more  inequitable  discrimination  against  the  cities.  In 
New  Jersey  the  counties  are  equally  represented  in  the  senate ; 
the  people  are  proportionately  represented  in  the  lower  house. 
Thus  the  senate  is  controlled  by  the  country  districts,  whilst  the 
house  is  controlled  by  the  cities.  In  Connecticut  the  reverse  is 
true.  The  senators  are  apportioned  according  to  population, 
whilst  the  lower  house  represents  the  towns  without  regard  to 
population.  In  this  state  the  most  extraordinary  discrimination 
occurs.  New  Haven,  Bridgeport,  Waterbury,  and  Hartford, 
with  a  combined  population  of  more  than  four  hundred  thousand, 
have  only  eight  representatives  in  the  lower  house  of  the  legisla- 
ture. Tlyv  four  towns  of  Union,  Hartland,  Killingworth,  and 
Coldbrookr;  with  a  combined  population  of  less  than  2500,  also 
have  eight  representatives.  Discrimination  against  the  large 
cities  may  also  be  brought  about  by  the  lack  of  provision  for 
periodic  apportionments.  In  some  cases  discrimination  is  ex- 
plicitly required  by  the  constitution.  Thus  in  New  York  the 
constitution  seeks  to  preserve  rural  domination  of  the  legislature 
by  providing  that  no  county  (with  one  exception)  shall  have  less 
than  one  representative  in  the  lower  house  and  that  no  two  con- 
tiguous counties  (by  which  New  York  City  is  meant)  shall  have 
more  than  half  of  the  total  number  of  senators.  In  most  of  the 
states  the  rural  districts  retain  a  hold  upon  one  of  the  houses  out 
of  all  proportion  to  their  numerical  strength.  In  two  of  them, 
Rhode  Island  and  Delaware,  gross  discrimination  against  the 
cities  exists  in  both  branches  of  the  legislature.1 

Discrimination  against  the  inhabitants  of  the  cities  in  both 
branches  of  a  legislature  can  hardly  be  justified  upon  any  prin- 
ciples of  government  at  present  accepted  by  Americans.  Dis- 

1  The  discrimination  against  the  cities  in  the  apportionment  of  members  of  the 
legislature  goes  far  to  explain  the  opposition  in  the  legislatures  of  these  states  to  all 
political  changes  designed  to  increase  the  power  of  the  "people,"  that  is,  of  a  nu- 
merical majority  of  the  voters.  The  direct  nomination  of  candidates  for  state 
office  in  the  primaries  is  opposed  in  such  states  as  Rhode  Island  and  Delaware,  be- 
cause the  abandonment  of  the  convention  system  would  mean  the  end  of  the  control 
of  such  nominations  by  the  rural  districts.  Direct  legislation  by  the  people  is  ob- 
jectionable because  it  would  nullify  rural  control  of  the  legislatures.  It  is  not  a 
theory,  but  a  condition,  that  confronts  the  rural  voters  of  those  states. 


248       STATE  GOVERNMENT  IN  UNITED  STATES 

crimination  against  the  cities  in  one  branch  is  defended  by  repre- 
sentatives of  the  rural  communities  on  the  ground  that  they  are 
fairly  entitled  to  control  at  least  one  branch.  Originally  the 
country  districts,  that  is,  the  agricultural  classes,  controlled  both 
branches  of  all  state  legislatures.  With  the  growth  of  cities, 
however,  and  the  rise  of  an  urban  industrial  class,  the  political 
supremacy  of  the  farmers  was  threatened.  In  many  states  con- 
flicts of  interest  arose  between  city  and  county.  In  all  states 
rural  and  urban  prejudices  clashed.  In  states  where  the  urban 
voters  are  a  majority,  a  discrimination  against  the  cities  which 
enables  the  rural  districts  to  control  one  branch  of  the  legislature 
establishes  a  check  upon  the  power  of  the  urban  majority  to 
dominate  the  rural  minority.  Thus  the  bicameral  system  facili- 
tates the  maintenance  of  the  balance  of  power  between  city  and 
county.  Such  a  system  may  be  advocated  as  a  mode  of  protect- 
ing the  rights  of  the  rural  minority.  But  it  is  inconsistent  with 
the  modern  theory  of  party  government.  This  is  clearly  apparent 
in  those  cases  where  one  party  represents  the  cities,  and  the  other 
the  rural  districts.  In  such  cases  the  effect  of  discrimination 
against  the  cities  is  to  interfere  with  the  effective  control  of  legis- 
lation by  the  majority  party,  whenever  the  city  party  is  in  a 
majority  in  the  state  as  a  whole.  Such  discrimination  raises 
many  fundamental  questions.  Are  not  the  rights  of  rural  minori- 
ties adequately  protected  by  the  courts  ?  If  not,  could  they  not 
be  adequately  protected  by  some  suitable  system  of  rural  "home 
rule"?  If  not,  would  it  not  be  better  to  abandon  the  present 
system  of  representing  only  local  majorities  in  the  legislatures, 
and  to  adopt  a  different  system  of  representation,  a  system  frankly 
designed  to  represent  all  the  people? 

METHODS    OF    LEGISLATIVE    PROCEDURE 

The  second  ground  for  the  adoption  of  the  bicameral  system 
was  the  supposed  value  of  a  second  chamber  as  a  means  of  pro- 
tecting, not  the  minority,  but  the  majority  itself  against  the 
enactment  of  undesirable  legislation.  With  only  one  house, 
there  was  believed  to  be  insufficient  security  for  due  deliberation. 
The  separate  consideration  of  proposed  legislation  in  two  houses 
was  advocated  merely  as  a  method  of  legislative  procedure.  It 


THE  STATE  LEGISLATURES  249 

becomes  necessary,  therefore,  to  inquire  next  what  are  the  present 
methods  of  legislative  procedure,  and  to  what  extent  the  exist- 
ence of  the  second  house  ensures  due  deliberation. 

The  rules  of  procedure  in  the  state  legislatures  have  developed 
in  response  to  four  principal  influences :  the  volume  of  legisla- 
tion, the  number  of  members,  the  limitations  of  time,  and  the 
exigencies  of  the  party  system.  The  volume  of  legislation  has 
grown  enormously,  is  still  growing,  and  threatens  to  continue  to 
grow.  In  1915  the  legislatures  of  forty-seven  states  adopted  a 
total  of  16,222  acts  and  resolves.1  The  total  number  of  measures 
introduced  into  the  legislatures  of  these  states  was  of  course 
much  greater.  In  the  twelve  largest  states  alone  more  than 
twenty- two  thousand  measures  were  introduced.2  In  most  of 
these  states  the  time  that  may  be  devoted  to  the  consideration 
of  this  mass  of  proposed  legislation  is  strictly  limited  by  the  con- 
stitution. In  Indiana,  for  instance,  the  total  number  of  measures 
introduced  into  the  legislature  of  1915  was  a  little  over  one 
thousand,  a  comparatively  moderate  number.  The  session  was 
limited  to  sixty  days.  If  every  measure  were  to  be  considered 
separately  on  the  floor  of  each  house,  and  the  houses  were  to  sit 
for  five  hours  each  day,  a  maximum  allowance  if  due  time  be 
allowed  for  other  necessary  legislative  work,  each  house  would 
have  to  dispose  of  a  measure  every  eighteen  minutes.  If  each 
member  were  to  speak  but  once  on  each  measure,  senators  could 
speak  a  little  less  than  twenty-two  seconds  each,  and  members  of 
the  lower  house,  half  that  period.  In  large  states  like  Massa- 
chusetts, New  York,  and  Pennsylvania,  although  there  is  no  fixed 
limit  to  the  duration  of  a  session,  the  volume  of  proposed  legisla- 
tion is  so  much  greater  than  in  Indiana  that  the  pressure  on  the 
time  of  the  legislature  would  appear  to  be  about  the  same. 

Under  actual  conditions,  the  pressure  upon  the  time  of  legis- 
lative bodies  is  greater  than  these  calculations  indicate.  The 
beginning  of  every  regular  session  is  inevitably  given  over  to 
organization  and  the  introduction  of  bills.  The  middle  part,  as 
will  be  made  clear  hereafter,  is  likely  to  be  devoted  to  committee 

1  Report  of  the  Committee  on  Noteworthy  Changes  in  Statute  Law  to  the 
American  Bar  Association,  1915,  p.  57. 

1  Official  Index  to  State  Legislation,  vol.  i,  1915.  Published  by  the  National 
Association  of  Law  Libraries. 


250       STATE  GOVERNMENT  IN  UNITED  STATES 

work,  trading,  and  manipulation.  There  remains  only  the  last 
part  of  the  session  for  actual  legislation.  One  legislature  which 
sat  for  one  hundred  and  thirty-two  days  passed  four  hundred  and 
forty-eight  general  laws,  three  hundred  and  twenty-eight  special 
laws,  and  sixty-two  joint  resolutions,  a  total  of  eight  hundred 
and  thirty-eight,  or  an  average  of  more  than  six  a  day.  One  half 
of  the  total  were  passed  in  the  last  fifteen  days,  nearly  thirty  a  day. 
Nearly  one  hundred  were  passed  on  the  last  day.1  This  crush  of 
legislation  at  the  close  came  in  a  legislature  where  there  was  no 
time  limit.  Where  there  is  a  time  limit,  the  crush  is  worse.  If 
any  considerable  number  of  members  were  opposed  to  a  measure, 
were  free  to  debate  it  at  length,  and  chose  to  do  so,  the  enactment 
of  the  measure  would  be  impossible.  If  each  member  of  the 
minority  party  were  free  to  speak  at  length  on  each  measure,  and 
chose  to  do  so,  the  majority  could  not  carry  on  the  government  of 
the  state. 

All  legislative  bodies  therefore  make  some  provision  for  the 
classification  of  their  business,  the  regulation  of  their  time,  and 
the  restriction  of  the  freedom  of  debate.  These  pro  visions  vary 
greatly  among  the  several  states,  but  certain  essentials  are  found 
everywhere.  In  the  first  place,  all  proposed  legislation  is  classi- 
fied according  to  its  nature,  and  all  measures  in  each  class  are 
referred  to  an  appropriate  committee.  The  nature  of  the  classi- 
fication, and  consequently  the  number  of  committees,  varies, 
but  the  rule  that  every  measure  shall  be  referred  to  a  committee 
before  being  considered  by  the  whole  house  is  in  general  effect. 
Secondly,  a  regular  order  of  business  is  established  by  a  standing 
rule,  and  in  the  absence  of  a  special  rule  or  order  each  measure  is 
considered  in  its  regular  order.  No  bill  may  be  adopted  by  either 
house  until  it  has  been  read  three  times,  and  by  the  constitutions 
of  many  states  the  readings  must  be  on  separate  days.  The 
rules  of  procedure  provide  for  the  progress  of  bills  through  their 
several  stages,  including  their  several  readings  and  reference  to 
committees,  and  for  the  consideration  of  business  in  the  various 
stages  at  appointed  times.  Finally,  debate  may  be  limited  in 
different  ways.  First,  limitations  may  be  placed  upon  the  free- 

1S.  P.  Orth,  "Our  State  Legislatures  "  (reprinted  from  the  Atlantic  Monthly, 
Dec.,  1904),  in.P.  S.  Reinsch,  Readings  on  American  Slate  Government,  pp.  41-56.  A 
very  interesting  article  on  the  personnel  and  work  of  the  legislatures. 


THE  STATE  LEGISLATURES  251 

dom  of  debate  in  general.  Thus,  in  most  legislative  bodies  no 
member  may  speak  twice  to  a  question  until  all  who  wish  have 
spoken  once.  In  some  bodies  no  member  may  speak  to  any 
question  for  more  than  a  prescribed  length  of  time.  In  all 
houses  there  are  certain  questions  to  which  a  member  may  not 
speak  for  more  than  a  prescribed  period  of  time.  In  the  case  of 
a  number  of  questions  the  prescribed  time  may  be  very  short, 
ten,  five,  or  three  minutes.  Certain  motions,  particularly  the 
motion  to  adjourn,  are  not  debatable  at  all.  Secondly,  limita- 
tions may  be  placed  upon  the  freedom  of  debate  upon  partic- 
ular measures.  Thus,  a  motion  may  be  adopted  to  fix  a  time 
at  which  the  discussion  of  a  pending  measure  shall  be  terminated 
and  the  vote  shall  be  taken.  Finally,  in  most  legislative  bodies 
debate  may  be  terminated  at  any  time  by  the  adoption  of  the 
previous  question,  that  is,  of  a  motion  that  the  main  question  be 
now  put  to  a  vote.  The  adoption  of  the  previous  question  puts 
an  end  to  debate  at  once,  though  generally  the  member  in  charge 
of  the  bill  is  granted  a  few  minutes  in  which  to  make  a  closing 
statement  before  the  taking  of  the  vote. 

The  rules  of  procedure  are  adopted  by  each  house  when  it 
first  convenes.  Subject  to  the  limitations  of  the  constitution, 
the  members  may  then  adopt  such  rules  as  they  please.  For  the 
first  and  last  tune  they  are  completely  their  own  masters.  Each 
member  is  the  peer  of  any  other.  By  the  adoption  of  rules,  each 
member  and  the  house  as  a  whole  put  on  shackles.  The  shackles 
are  riveted  by  the  choice  of  officers.  The  organization  of  the 
house  is  then  completed.  In  some  states,  as  has  already  been 
pointed  out,  the  constitutional  limitations  upon  legislative  pro- 
cedure are  numerous  and  salutary.  This  is  notably  the  case  in 
New  York.  The  rules  of  procedure  incorporated  in  the  constitu- 
tion of  that  state  carefully  regulate  the  manner  of  passing  bills. 
Special  restrictions  are  placed  upon  the  procedure  with  respect 
to  private  and  local  bills,  and  tax  and  appropriation  bills.  On 
the  final  passage  of  financial  bills,  the  ayes  and  noes  must  be 
taken,  and  a  special  quorum  is  prescribed.  In  all  states  where 
new  constitutions  have  recently  been  adopted,  similar,  though 
generally  less  complete,  provisions  designed  to  prevent  hasty  and 
disorderly  proceedings  in  the  state  legislatures  have  been  adopted. 
Unfortunately,  as  will  be  explained  hereafter,  the  practices  of 


252       STATE  GOVERNMENT  IN  UNITED  STATES 

bringing  in  special  rules  to  govern  procedure  with  respect  to 
matters  in  which  the  legislative  leaders  are  concerned,  and  of 
doing  almost  anything  by  unanimous  consent,  tend  to  bring  the 
constitutional  limitations  into  contempt. 

THE  SPEAKERSHIP 

The  most  powerful  officer  in  the  lower  houses  of  the  state  legis- 
latures is  the  speaker.  The  first  source  of  the  speaker's  power 
is  the  power  of  recognition.  No  member  may  address  the  house 
for  any  purpose  unless  he  has  first  been  recognized  by  the  speaker. 
By  refusing  to  recognize  a  member  the  speaker  can  reduce  that 
member  to  comparative  impotence.  By  ascertaining  in  advance 
for  what  purpose  members  will  desire  recognition,  and  by  arrang- 
ing to  grant  recognition  in  a  certain  order  or  only  for  certain  pur- 
poses, the  speaker  can  control  the  course  of  business.  By  habitu- 
ally recognizing  certain  members  for  certain  purposes  the  speaker 
can  raise  those  members  to  positions  of  the  greatest  influence  in 
the  conduct  of  affairs.  In  states  where  party  lines  are  sharply 
drawn  and  party  spirit  runs  high,  the  speaker  is  ordinarily  selected 
before  the  beginning  of  the  session  at  a  party  caucus.  At  the 
same  time  a  party  floor  leader  may  be  selected,  whom  the  speaker 
will  regularly  recognize  for  the  purpose  of  making  the  motions 
necessary  for  the  management  of  the  house  by  the  majority 
party. 

The  second  source  of  the  speaker's  power  is  the  power  to  rule. 
An  appeal  may  be  taken  from  a  ruling  of  the  speaker  to  the  house 
as  a  whole,  but  his  rulings  will  ordinarily  be  sustained  by  the 
majority,  if  they  are  in  the  interest  of  the  party.  Through  the 
possession  of  the  power  to  rule,  the  speaker  possesses  the  further 
powers  of  declaring  the  presence  of  a  quorum,  and  of  refusing  to 
entertain  dilatory  and  obstructive  motions.  By  the  use  of  these 
powers  a  masterful  speaker  may  do  much  to  prevent  a  minority 
of  members  from  impeding  the  enactment  of  the  measures  desired 
by  the  majority. 

The  third  source  of  the  speaker's  power  is  the  power  of  ap- 
pointment. By  appointing  members  of  his  own  party  to  a 
majority  of  the  places  on  committees,  he  insures  the  control  of 
committees  by  his  party.  By  appointing  his  most  trusted  asso- 


THE  STATE  LEGISLATURES  253 

dates  to  the  chairmanship  of  the  most  important  committees,  he 
determines  the  character  of  the  party  leadership.  By  appointing 
insurgent  members  of  his  party  to  unimportant  committees  he 
further  fortifies  the  power  of  the  regular  party  leaders. 

The  fourth  source  of  the  speaker's  power  is  the  power  of  refer- 
ence. By  referring  important  measures  to  committees  controlled 
by  the  party  leaders  he  may  determine  the  fate  of  the  measures. 
Unimportant  measures  may  be  referred  to  the  committees  which 
from  the  standpoint  of  the  "organization"  are  less  reliable. 
Committees  manned  by  able  but  independent  members  of  the 
party  may  be  heavily  burdened  with  routine  business  of  a  non- 
partisan  character.  Committees  manned  by  less  capable  mem- 
bers may  find  little  to  do. 

The  fifth  source  of  the  speaker's  power  is  the  power  to  control 
the  committee  on  rules.  This  power  does  not  exist  in  all  legis- 
latures, and  is  important  only  hi  those  where  the  committee  on 
rules  is  highly  privileged.  In  general,  however,  the  powers  of 
the  speaker  are  the  same  in  all  the  states.  The  president  of  the 
senate,  who  is  usually  the  lieutenant-governor  ex  officio,  exercises 
the  powers  of  recognition,  ruling,  and  reference,  but  does  not 
always  make  appointments  to  committees  or  control  the  com- 
mittee on  rules.  In  the  senates  the  most  important  member  is 
likely  to  be  the  floor  leader  of  the  majority  party. 

THE  SYSTEM  OF  COMMITTEES 

In  many  respects,  as  has  already  been  suggested,  the  rules  of 
procedure  adopted  by  the  legislative  bodies  of  the  states  vary 
greatly.  State  legislatures  might  be  classified  in  a  number  of 
ways,  according  to  the  nature  of  the  variations  in  their  rules. 
The  most  significant  classification  is  that  based  upon  the  extent 
to  which  special  privileges  are  granted  to  the  regular  standing 
committees.  Upon  this  basis  of  classification  the  legislative 
bodies  fall  into  three  divisions. 

THE  MASSACHUSETTS   COMMITTEE  SYSTEM 

The  first  division  comprises  those  states  in  which  compara- 
tively few  privileges  are  granted  to  the  committees.  In  Massa- 
chusetts, the  principal  state  in  this  class,  the  only  important 


254       STATE  GOVERNMENT  IN  UNITED  STATES 

privilege  granted  to  the  committees  is  that  of  examining  meas- 
ures referred  to  them  prior  to  their  consideration  by  the  house  as 
a  whole.  Each  committee  is  accustomed  to  give  a  public  hear- 
ing to  the  advocates  and  opponents  of  each  bill  which  has  been 
referred.  Each  committee  is  required  to  report  each  bill,  after 
public  hearing  and  before  an  appointed  day,  to  the  house  or 
senate,  as  the  case  may  be.  All  committees,  to  which  proposed 
legislation  is  referred  on  introduction,  are  joint  committees  of 
both  houses.  Both  public  hearings  and  committee  deliberations 
are  attended  by  the  members  from  each  house  before  reports  are 
made  to  either  house.  Bills  are  generally  reported  to  the  house 
in  which  they  were  first  introduced.  If  passed  by  that  house, 
they  may  be  considered  at  once  by  the  other  house  without  further 
consideration  in  committee.  The  reports  of  committees  are  re- 
ceived and  acted  upon  in  order,  and  the  regular  order  cannot  be 
changed  without  the  consent  of  four-fifths  of  the  members  of  the 
house.  None  of  the  committees  among  which  the  business  of  the 
house  is  originally  divided  enjoys  any  special  privileges,  either 
with  respect  to  the  consideration  of  their  reports  or  with  respect 
to  the  control  of  debate.  The  most  important  committee  is  that 
on  ways  and  means.  To  this  committee  are  referred  all  depart- 
mental estimates,  which  serve  as  the  basis  for  the  regular  annual 
appropriations.  Hearings  are  held  by  the  house  members  of 
the  committee  separately.  At  these  hearings  the  departmental 
heads  explain  the  needs  of  their  departments  for  the  next  fiscal 
year.  All  proposed  new  legislation  entailing  the  expenditure  of 
public  money  is  also  referred  to  the  committee  on  ways  and 
means,  before  it  is  placed  on  the  order  of  second  reading,  so  that 
there  may  be  a  report  on  its  relation  to  the  state  finances.  Thus 
there  are  two  reports  on  such  a  measure,  one  from  the  committee 
to  which  it  was  originally  referred  on  its  general  merits,  the 
other  from  the  committee  on  ways  and  means  on  its  relation  to 
the  state  finances. 

The  Massachusetts  system  of  legislative  procedure  has  many 
advantages.  The  holding  of  a  public  hearing  on  every  bill  affords 
an  excellent  opportunity  for  the  ventilation  of  real  and  imaginary 
grievances,  and  for  gauging  the  extent  of  the  public  demand  for 
proposed  legislation.  It  educates  both  the  legislators  and  the 
public.  It  also  compels  the  proponents  of  ill-considered  and  un- 


THE  STATE  LEGISLATURES  255 

desirable  legislation  to  run  the  gantlet  of  pitiless  publicity. 
The  requirement  that  every  bill  be  reported  to  the  whole  house 
prevents  committees  from  pigeonholing  desirable  legislation 
and  compels  them  to  justify  their  action  in  each  case.  The 
establishment  of  a  regular  order,  which  cannot  be  set  aside  except 
by  a  four-fifths  vote,  and  which  must  be  completed  before  the 
legislative  session  can  end,  insures  that  every  measure  will  be 
duly  considered  by  at  least  one  house.  Thus  the  majority  of  the 
legislature  can  effectively  control  the  course  of  legislation,  for 
they  cannot  be  prevented  from  adopting  any  bill  which  they 
desire  to  adopt,  nor  from  defeating  any  bill  to  which  they  are 
opposed.  The  use  of  joint  committees  instead  of  separate  com- 
mittees of  each  house  for  the  initial  consideration  of  proposed 
legislation  saves  much  time  on  the  part  of  legislators,  and  much 
effort  on  the  part  of  proponents  and  opponents  of  legislation. 
It  also  tends  to  remove  needless  friction  between  the  two  houses. 
The  Massachusetts  system  of  procedure  is  seen  at  its  best  in  the 
case  of  appropriations.  The  centralization  of  responsibility  for 
all  appropriations  in  a  single  committee  enables  a  strong  committee 
to  maintain  a  proper  relation  between  the  appropriations  for  the 
several  departments,  and  between  appropriations  as  a  whole 
and  the  revenues  of  the  state.  The  restrictions  upon  the  power 
of  this  committee  to  originate  appropriations,  and  the  require- 
ment that  its  reports  be  considered  separately  in  the  regular 
order,  enable  the  legislature  to  deal  with  each  appropriation  on 
its  individual  merits.  Professor  Reinsch  has  justly  observed : 
"The  General  Court l  of  Massachusetts  is  in  all  respects  nearest 
the  people,  and  most  responsive  of  any  American  legislature  to 
intelligent  public  opinion."  2  But  there  is  one  feature  of  this 
system  of  procedure  which,  as  things  now  stand,  would  be  con- 
sidered undesirable  in  all  states,  and  in  most  of  them  constitutes 
an  insuperable  objection  to  its  adoption.  The  legislature  ordi- 
narily cannot  dispose  of  its  business  in  less  than  five  or  six 
months.3 

1  The  constitutional  name  of  the  Massachusetts  legislature. 

1  P.  S.  Reinsch,  American  Legislatures  and  Legislative  Methods,  p.  174. 

*  For  a  full  description  of  legislative  procedure  in  Massachusetts,  see  L.  A. 
Frothingham,  A  Brief  History  of  the  Constitution  and  Government  of  Massachusetts, 
ch.  vii.  Doubtless  the  length  of  the  legislative  session  could  be  materially  re- 
duced by  the  adoption  of  certain  minor  changes  in  the  rules  of  procedure. 


256       STATE  GOVERNMENT  IN  UNITED  STATES 

THE  NORMAL  COMMITTEE  SYSTEM 

The  second  division  of  states  comprises  those  in  which  legis- 
lative committees  are  more  highly  privileged  than  in  Massachu- 
setts. In  these  states  committees  are  privileged  to  grant  or  refuse 
public  hearings  on  referred  bills  at  their  discretion.  In  states 
where  committees  meet  at  the  call  of  their  chairmen,  the  chair- 
man of  each  committee  can  decide  in  most  cases  whether  or  not 
a  hearing  shall  be  held.  Committees  are  privileged  to  report 
bills  to  the  house  or  to  kill  them  by  refusing  to  report.  In  most 
states  the  majority,  under  the  rules,  can  discharge  a  committee 
from  further  consideration  of  a  bill,  but  in  many  of  these  such 
action  is  difficult  in  practice.  In  some  states  the  reports  of  im- 
portant committees  are  privileged  under  the  rules,  and  entitled 
to  prior  consideration  out  of  the  regular  order.  More  frequently, 
however,  special  consideration  is  obtained  for  the  reports  of  such 
committees  through  the  collusion  of  the  speaker  and  the  com- 
mittee chairman  or  the  floor  leader.  The  speaker  recognizes  the 
member  in  charge  of  the  report,  to  the  end  that  the  member 
may  move  that  the  report  be  made  a  special  order  for  considera- 
tion at  an  appointed  hour.  In  such  states  the  regular  order  may 
generally  be  set  aside  by  a  majority  vote,  and  unless  the  majority 
is  ready  to  repudiate  the  regular  legislative  leaders  it  will  adopt 
any  special  order  proposed  by  them.  If,  as  is  the  case  in  most  of 
these  states,  the  legislative  session  is  strictly  limited  by  the  con- 
stitution, there  is  inevitably  a  tremendous  press  of  business  in 
the  last  days  of  the  session.  Under  such  circumstances,  the 
speaker  and  the  chairmen  of  the  principal  committees  are  nearly 
omnipotent.  They  may  not  be  able  to  force  through  to  enact- 
ment all  the  measures  which  they  favor,  but  they  can  certainly 
prevent  the  adoption  of  measures  to  which  they  are  opposed. 
The  general  knowledge  that  they  possess  this  power  increases 
their  power  to  secure  the  adoption  of  the  measures  which  they 
favor.  Measures  go  through  in  blocks,  without  discussion  and 
often  without  examination  by  the  body  of  members,  practically 
by  unanimous  consent. 

The  existence  of  separate  committees  in  each  house  serves 
further  to  strengthen  the  position  of  the  "organization"  and  to 
weaken  the  general  body  of  members.  A  common  practice, 


THE  STATE  LEGISLATURES  257 

where  a  bill  is  passed  by  one  house  and  amended  in  the  other,  is 
to  appoint  a  special  conference  committee,  composed  of  the  lead- 
ing members  of  the  regular  standing  committees  having  jurisdic- 
tion over  the  bill  in  each  house,  to  agree  on  a  compromise  measure 
and  report  it  in  identical  form  to  each  house.  These  reports  are 
always  privileged,  and  receive  immediate  consideration  regard- 
less of  the  regular  order.  If  they  are  made  towards  the  close  of 
the  session  the  two  houses  must  adopt  them  as  made,  or  accept 
responsibility  for  the  defeat  of  the  legislation.  Where  the  leaders 
wish  to  control  the  action  of  the  legislature  on  a  measure,  a  favor- 
ite plan  is  to  procure  the  adoption  of  conflicting  committee  reports 
in  each  house  and  the  reference  of  the  measure  to  a  conference 
committee.  The  latter  committee  they  are  sure  to  control  and 
they  are  consequently  able  to  rewrite  the  measure,  if  they  wish, 
and  to  bring  it  to  pass  that  it  shall  be  adopted,  if  at  all,  on  terms 
satisfactory  to  themselves.  In  some  legislatures  where  there  is  a 
time  limit,  a  special  committee  on  the  revision  of  the  calendar 
(that  is,  the  list  of  pending  measures  in  their  regular  order)  is 
appointed  towards  the  close  of  the  session.  The  membership  of 
this  committee  is,  of  course,  dictated  by  the  "organization,"  and 
it  determines  what  measures  shall  thereafter  be  considered,  and 
the  order  of  consideration.  Such  a  committee,  consisting  as  a 
rule  of  not  more  than  five  members  of  the  lower  house  and  three 
of  the  upper,  practically  controls  the  business  of  the  legislature 
for  the  rest  of  the  session.  It  is  in  itself  a  bicameral  legislature 
in  miniature,  in  favor  of  which  the  larger  body  abdicates  its 
constitutional  powers. 

A  specimen  of  this  type  of  procedure  at  its  worst  is  afforded 
by  the  rules  of  the  Illinois  legislature.  There  are  in  the  house 
sixty-eight  committees,  the  largest,  the  committee  on  finance, 
having  forty-four  members.  Few  of  the  committees  have  less 
than  fifteen  members.  Members  of  the  house  serve  on  the  aver- 
age on  more  than  twelve  committees  each.  There  are  in  the 
senate  forty-four  committees,  having  on  the  average  twenty 
members  each.  Some  members  serve  on  more  than  twenty 
different  committees.  "The  committee  system  of  Illinois  makes 
normal  legislative  action  all  but  impossible.  The  natural  result 
is  that  political  ringsters  find  a  fertile  field  for  their  work.  To 
push  legislation  through,  power  must  be  concentrated  in  the 


258       STATE  GOVERNMENT  IN  UNITED  STATES 

hands  of  a  few,  who  are  governed  by  no  rules  and  cannot  be  held 
responsible  by  the  honest  but  unorganized  majority.  Business 
cannot  be  carried  on  under  the  rules,  so  it  is  rushed  through  under 
'  suspension  of  the  rules,'  and  the  actual  procedure  even  at  other 
times  bears  only  a  faint  resemblance  to  that  pictured  by  the  regu- 
lations." l  In  at  least  three-fourths  of  the  states  the  legislative 
committees  are  too  large  and  too  numerous.  Under  such  cir- 
cumstances it  is  difficult,  even  when  an  honest  majority  are  try- 
ing to  control  legislative  proceedings,  to  secure  a  full  attendance 
at  committee  meetings  and  prompt  action.  Almost  universally 
the  actual  work  of  committees  is  done  in  secret  or  "executive" 
session,  and  there  is  no  provision  for  roll-calls  on  contested  meas- 
ures, or  for  any  record  of  committee  proceedings.  In  those  states 
where  the  committees  are  not  required  by  standing  rule,  and 
cannot  easily  be  required  by  special  order,  to  report  all  bills,  a 
bill  may  be  killed  in  committee,  and  every  man  in  the  legislature 
could  claim  to  have  supported  it.  Nothing  to  the  contrary  could 
be  shown  from  the  record.  A  more  irresponsible  procedure  could 
not  be  devised.2 

This  system  of  procedure,  which  may  be  described  as  the  normal 
system  because  it  exists  in  the  greater  number  of  states,  substi- 
tutes the  rule  of  the  committees  for  the  rule  of  the  majority. 
This  result  was  first  clearly  pointed  out  by  the  distinguished 
author  of  the  brilliant  study  in  American  politics,  entitled  Con- 
gressional Government,  written  thirty  years  ago,  when  the  sys- 
tem prevailed  in  Congress  as  well  as  in  most  of  the  states.  "I 
know  not  how  better  to  describe  our  form  of  government  in  a 
single  phrase,"  he  wrote,  "than  by  calling  it  a  government  by 
the  chairmen  of  the  standing  committees.  .  .  .  This  disinte- 
grate ministry  .  .  .  has  many  peculiarities.  In  the  first  place, 
it  is  made  up  of  the  elders  of  the  assembly,  for  by  custom  seni- 
ority in  ...  service  determines  the  bestowal  of  the  principal 
chairmanships ;  in  the  second  place,  it  is  constituted  of  selfish  and 
warring  elements,  for  chairman  fights  against  chairman  for  use 
of  the  time  of  the  assembly  .  .  .  ;  in  the  third  place,  ...  it 
consists  of  the  dissociated  heads  of  forty-eight  'little  legislatures' 

1  C.  L.  Jones,  Statute  Law  Making  in  the  United  States,  pp.  18-19. 
1  See  Nebraska  Legislative  Reference  Bureau,  Bulletin  No.  3,  Legislative  Pro- 
redurc  in  the  Forty-Eight  States,  pp.  16-17. 


THE  STATE  LEGISLATURES  259 

(to  borrow  Senator  Hoar's  apt  name  for  the  committees) ;  and 
in  the  fourth  place  it  is  instituted  by  appointment  from  Mr. 
Speaker.  ...  It  is  highly  interesting  to  note  the  extraordinary 
power  accruing  to  Mr.  Speaker  through  this  pregnant  prerogative 
of  appointing  the  standing  committees  of  the  house.  .  .  .  The 
most  esteemed  writers  upon  our  constitution  have  failed  to 
observe,  not  only  that  the  standing  committees  are  the  most 
essential  machinery  of  our  governmental  system,  but  also  that 
the  speaker  of  the  house  of  representatives  is  the  most  powerful 
functionary  of  that  system.  So  sovereign  is  he  within  the  wide 
sphere  of  his  influence  that  one  could  wish  for  accurate  knowledge 
as  to  the  actual  extent  of  his  power.  But  Mr.  Speaker's  powers 
cannot  be  known  accurately,  because  they  vary  with  the  char- 
acter of  Mr.  Speaker."  l 

THE  NEW  YORK  COMMITTEE  SYSTEM 

Since  the  publication  of  Congressional  Government  a  striking 
change  has  taken  place  in  the  operation  of  the  committee  system 
in  Congress,  and  a  similar  change  has  taken  place  in  a  few  of  the 
states.  In  Congress  the  power  of  the  speaker  grew  steadily 
greater,  until  at  last,  in  1910,  it  had  become  so  great  that  it  was 
insupportable.  The  chief  source  of  the  increased  power  of  the 
speaker  was  his  control  of  the  committee  on  rules,  and  the  gradual 
extension  of  the  highest  privileges  to  this  committee.  The 
speaker  controlled  the  committee  on  rules  because  he  was  the 
chairman  of  the  committee  and  held  the  decisive  vote.  The 
otfier  four  members  were  evenly  divided  between  the  two  major 
parties.  The  committee  on  rules  had  become  highly  privileged 
because,  with  the  increase  in  the  membership  and  business  of 
Congress,  party  exigencies  demanded  an  increase  in  the  power  to 
control  its  deliberations.  The  power  which  had  once  been  dis- 
tributed among  a  number  of  semi-independent  committee  chairmen 
needed  to  be  centralized.  The  committee  on  rules  was  accord- 
ingly privileged  to  meet  at  any  time,  even  during  the  sittings  of 
the  house,  to  report  at  any  time,  interrupting  the  consideration 

1  Woodrow  Wilson,  Congressional  Government  (ed.  of  1900),  pp.  102-104.  For 
an  account  of  the  origin  of  the  committee  system  in  American  legislatures,  see  J.  F. 
Jameson,  "The  Origin  of  the  Standing  Committee  System  in  American  Legislative 
Bodies,  Pol.  Sci.  Quart.,  ix,  2. 


260       STATE  GOVERNMENT  IN  UNITED  STATES 

of  the  regular  order,  and  to  obtain  immediate  consideration  for 
its  reports.  The  committee  was  granted  exclusive  jurisdiction 
over  all  proposals  to  change  the  rules  or  to  adopt  any  special 
order  of  business,  and  was  authorized  to  bring  in  a  special  rule 
at  any  time  without  waiting  for  a  proposal  for  such  a  rule  to  be 
referred  to  it  by  the  house.  Special  rules  reported  by  the  com- 
mittee were  made  effective,  if  adopted  by  a  majority  of  the  house, 
but  without  a  special  report  from  the  committee  the  house  could 
not  depart  from  the  regular  order  except  by  a  two-thirds  vote. 
Thus  the  committee  on  rules  practically  controlled  the  order  of 
business,  at  least  so  far  as  contentious  matters  were  concerned. 
Non-contentious  matters,  usually  disposed  of,  if  at  all,  by  unani- 
mous consent,  could  be  controlled  by  the  speaker  alone.  In 
short,  the  combination  of  the  power  of  recognition,  appointment, 
and  control  of  the  committee  on  rules  made  the  speaker  a  veri- 
table dictator  in  the  house  of  representatives.  A  similar  develop- 
ment in  the  influence  of  the  speaker  took  place  in  those  states 
where  business  was  heavy,  where  members  were  numerous, 
where  time  was  short,  and  where  party  lines  were  closely  drawn. 
This  was  notably  the  case  in  the  state  of  New  York. 

The  dictatorial  power  of  the  speaker  became  objectionable  in 
Congress  for  three  reasons.  First,  because  it  menaced  unduly 
the  interests  of  the  minority  party.  The  minority  leaders  found 
that,  under  the  operation  of  special  rules  reported  by  the  com- 
mittee on  rules  for  the  purpose  of  rushing  party  measures  through 
their  several  stages  to  enactment,  they  were  deprived  of  adequate 
facilities  for  criticism  of  the  majority's  measures  and  for  exposi- 
tion of  their  own.  Secondly,  it  was  oppressive  to  the  unprivileged 
members  of  the  majority  party.  Insurgent  members  in  partic- 
ular found  that  the  means  of  coercion  in  the  hands  of  the  speaker 
were  so  effective  as  to  reduce  them  to  impotence  unless  they  sup- 
ported the  party  program.  Thirdly,  it  threatened  to  destroy 
the  liberty  of  ordinary  members,  without  regard  to  their  party 
affiliation,  with  respect  to  the  promotion  of  private  and  local 
measures.  In  1910  the  speaker  was  removed  from  the  committee 
on  rules,  the  committee  was  enlarged,  and  the  members  were 
elected  by  the  house  itself.  In  1911  the  power  of  appointment 
was  taken  from  the  speaker  and  conferred  upon  the  committee  on 
ways  and  means.  The  majority  party  members  of  this  com- 


THE  STATE  LEGISLATURES  261 

mittee  were  chosen  by  the  party  caucus,  and  the  caucus  adopted 
the  practice  of  considering  the  more  important  pieces  of  proposed 
legislation  before  they  were  reported  out  of  committee,  and  in- 
structing the  party  leaders  what  action  should  be  taken.  These 
reforms  accomplished  little  for  the  protection  of  the  minority 
party  and  the  individual  members,  but  they  transferred  the  con- 
trol of  the  legislative  machinery  from  the  speaker  to  the  party 
caucus.  The  reform  of  the  rules  in  the  national  house  of  rep- 
resentatives stimulated  the  reform  of  procedure  in  the  state  legis- 
latures, but  no  state  went  so  far  as  Congress  in  curbing  the  power 
of  the  speaker  and  in  developing  the  authority  of  the  party  caucus. 
In  New  York  the  speaker  remains  chairman  of  the  committee  on 
rules.  In  that  state  the  congressional  system,  as  it  existed  prior 
to  the  reform  of  1910-11,  still  holds  sway. 

H 

WORKING  OF  METHODS  OF  PROCEDURE 

The  normal  system  of  legislative  procedure  and  what  may  now 
be  described  as  the  New  York  system  have  much  in  common. 
Under  either  system  the  speaker  is  the  dominant  personality  in 
the  business  of  legislation.  Under  either  system  a  handful  of 
privileged  members  outweigh  all  the  rest.  Under  either  system 
the  unprivileged  member  finds  himself  a  mere  cog  in  a  machine, 
so  far  as  the  enactment  of  legislation  is  concerned.  The  more 
mechanically  he  performs  the  duties  required  of  him  by  the  legis- 
lative leaders,  the  more  successful  he  can  hope  to  be  in  serving 
the  special  interests  of  his  own  district.  A  new  member  especially 
(and  a  substantial  portion  of  the  membership  of  every  legislative 
body  is  always  new)  is  helpless  without  the  favor  of  the  "  organi- 
zation." As  former  Speaker  Smith  of  the  New  York  assembly 
once  candidly  confessed :  "Unquestionably  no  matter  how  able 
he  may  be,  he  cannot  possibly  understand  the  rules  ...  in  one 
year."  !  It  is  not  surprising  that  under  such  circumstances 
members  seem  to  be  chiefly  interested  in  special  rather  than  in 
general  legislation.  Elihu  Root  declared  in  his  valedictory  ad- 
dress to  the  New  York  constitutional  convention  of  1915  :  "We 
found  that  the  legislature  of  the  state  had  declined  in  public 
esteem,  and  that  the  majority  of  members  of  the  legislature  were 

1  New  York  Constitutional  Convention  of  1915,  Record,  p.  1213. 


262        STATE   GOVERNMENT  IN  UNITED  STATES 

occupying  themselves  chiefly  in  the  promotion  of  private  and 
local  bills,  of  special  interests,  .  .  .  upon  which  apparently  their 
reelections  to  their  positions  depended,  and  which  made  them 
cowards  and  demoralized  the  whole  body."  1  The  responsibility 
for  the  action  of  the  legislature  on  important  matters  is  assumed 
by  a  few  experienced  leaders.  The  cement  which  holds  their 
following  together  is  the  control  of  the  distribution  among  the 
districts  represented  by  their  followers  of  public  money  and  of 
special  privileges  of  various  sorts. 

The  principal  difference  between  the  normal  and  the  New 
York  systems  of  procedure  concerns  the  relations  between  the 
little  band  of  leaders.  Under  the  New  York  system  the  leaders 
were  more  closely  banded  together  than  under  the  normal  sys- 
tem. Committee  chairmen  are  less  independent  of  one  another 
and  are  more  effectually  subordinated  to  the  authority  of  the 
speaker  and  the  committee  on  rules.  Under  the  normal  system 
the  "organization"  is  in  control,  but  it  is  loosely  articulated. 
Under  the  New  York  system  the  "organization"  is  closely  articu- 
lated. Its  decisions  may  be  swiftly  formed,  and  promptly  exe- 
cuted. The  New  York  system  is  consequently  more  favorable 
to  effective  party  action.  Under  the  normal  system  of  com- 
mittee government,  each  committee  is,  as  the  late  Senator  Hoar 
of  Massachusetts  observed  a  generation  ago,  a  "little  legisla- 
ture" by  itself.  Within  its  special  field  it  reigns  supreme. 
Each  decides  for  itself  what  the  interests  of  the  people  and  of  the 
party  require  of  it.  Under  the  New  York  system  the  speaker 
and  committee  on  rules  make  the  final  decision  as  to  what  the 
interests  of  the  people  and  of  the  party  require.  In  fact,  in 
most  states  the  interests  of  the  parties  are  involved  in  but  a 
very  few  of  the  measures  that  come  before  the  legislatures.  As 
has  already  been  pointed  out,  the  parties  in  America  are  essen- 
tially national  parties.  They  are  divided  mainly  upon  national 
issues.  It  is  difficult  for  them  to  take  sides  upon  purely  state 
issues.  The  members  of  most  legislatures  are  elected  upon  party 
lines  that  have  little  connection  with  the  bulk  of  the  legislative 
business.  The  committees  comprise  members  of  both  parties, 
and  normally  their  reports  reflect  the  compromise  of  various  in- 
dividual opinions  regardless  of  party.  The  custom  by  which 

xNew  York  Constitutional  Convention  of  1915,  Record,  p.  4458. 


THE  STATE  LEGISLATURES  263 

only  majority  party  members  attend  committee  meetings  on 
public  general  bills,  which  is  growing  in  Congress,  has  not  been 
established  in  the  states.  In  most  state  legislatures  party  meas- 
ures are  few,  and  party  voting  either  in  committee  or  on  the  floor 
of  the  two  houses  infrequent.1  New  York,  as  might  be  expected 
in  view  of  the  procedure  which  has  developed  there,  is  an  excep- 
tion to  the  general  rule. 

Party  lines  indeed  are  much  less  important  in  the  state  legis- 
latures than  is  frequently  asserted.  In  general  the  party  "  boss, " 
if  there  be  one,  or  the  party  caucus,  rarely  dictates  the  action  of 
party  members  on  public  questions.  As  President  Lowell  of 
Harvard  has  pointed  out,  the  "boss"  usually  controls  only  a 
portion  of  the  members  of  the  party,  and  is  usually  disinclined 
to  meddle  with  general  legislation.  To  attempt  to  dictate  to  his 
followers  on  general  legislation  would  only  weaken  his  authority 
over  them.  He  confines  his  attention  to  the  distribution  of  the 
"spoils,"  to  laws  that  bear  upon  electoral  machinery,  and  to 
such  bills  as  affect  the  persons  from  whom  he  derives  his  revenue. 
"The  very  position  of  the  boss  depends  upon  the  fact  that  parties 
exist  for  public  objects,  while  he  exists  for  private  ones." z 
Parties  in  the  state  legislatures  do  not  as  a  rule  caucus  on  public 
questions,  because  they  have  too  little  cohesion.  No  member 
need  feel  bound  by  the  vote  of  a  party  caucus  unless  he  goes  into 
the  caucus  and  participates  in  the  vote.  No  member  need  go 
into  a  party  caucus  unless  he  expects  to  be  satisfied  with  the 
result.  He  is  not  so  much  dependent  upon  the  good  will  of  his 
nominal  party  associates  as  upon  the  support  of  his  own  district. 
Consequently  the  authority  of  the  speaker,  supported  as  it  is  by 
genuine  power  to  reward  and  to  punish,  is  far  more  important 
than  that  of  any  party  caucus.  But,  as  President  Wilson  said 
long  ago:  "Mr.  Speaker's  powers  cannot  be  known  accurately, 
because  they  vary  with  the  character  of  Mr.  Speaker."  If  a 
forceful  presiding  officer,  whether  in  the  lower  house  or  in  the 
senate,  cooperates  to  the  full  extent  of  his  ability  with  a  masterful 
governor,  a  party  program  can  be  put  through  the  house  or  senate 

1  See  A.  L.  Lowell,  "The  Influence  of  Party  upon  Legislation  in  England  and 
America,"  plate  iv,  in  the  Annual  Report  of  the  American  Historical  Association  for 
looi,  i,  pp.  310-542. 

1  A.  L.  Lowell,  op.  cit.,  p.  349. 


264       STATE  GOVERNMENT  IN  UNITED  STATES 

with  certainty  and  celerity.  But  if  the  presiding  officers  of  the 
two  houses  are  out  of  sympathy  with  the  governor,  party  pro- 
grams, so  far  as  the  governor  may  stand  sponsor  for  them,  are 
likely  to  fail.  If  the  presiding  officers  of  the  houses  are  chiefly 
interested  in  private  and  local  measures  and  indifferent  to  the 
common  welfare,  jobbery  and  the  abuse  of  patronage  will  hold 
sway.  In  such  matters  party  lines  are  of  little  account. 


WORKING  OF  BICAMERAL  SYSTEM 

Under  either  the  normal  or  the  New  York  system  of  procedure, 
the  division  of  the  legislature  into  two  separate  houses  is  one 
of  the  less  important  factors  affecting  the  character  of  legislation. 
The  general  results  of  the  bicameral  system  can  be  discerned 
from  the  record  of  legislation  in  the  states.  In  Michigan,  for 
example,  during  the  legislative  session  of  1915  there  were  395 
measures  introduced  into  the  senate,  and  496  into  the  lower 
house.  Of  the  measures  originally  introduced  into  the  senate 
139  were  killed  in  committee,  32  on  the  floor,  and  72  passed  that 
body  and  were  killed  in  the  other  house,  mostly  in  committee. 
Of  the  measures  originally  introduced  into  the  lower  house  228 
were  killed  in  committee,  39  on  the  floor,  and  43  passed  that 
body  and  were  killed  in  the  other  house,  mostly  in  committee. 
The  remaining  measures  passed  both  houses.1  The  legislative 
record  of  Michigan  is  typical  of  that  of  most  states  where  the 
normal  procedure  is  established.  It  is  clear  that  the  division  of 
the  legislature  into  two  houses  is  of  less  consequence  than  the 
division  of  each  house  into  committees.  Altogether  115  of  the 
891  measures  introduced  into  the  two  houses,  after  having  passed 
one  house,  were  killed  in  the  other.  It  does  not  follow,  however, 
that  this  action  was  in  every  case  in  the  public  interest.  A  favor- 
ite trick  of  politicians  who  wish  to  avoid  the  adoption  of  popular, 
but  to  them  objectionable,  legislation  is  to  procure  the  introduc- 
tion in  each  house  of  different  measures  ostensibly  designed  to 
accomplish  the  same  purpose.  Each  house  can  then  pass  its 
own  measure  and  kill  that  passed  by  the  other  house.  Every 
legislator  who  needs  to  placate  public  opinion  in  his  district  can 

1  See  Official  Index  to  State  Legislation,  1915. 


THE  STATE  LEGISLATURES  265 

vote  for  one  of  the  measures  and  help  kill  the  other.  Thus  a 
majority  of  the  whole  legislature  can  get  on  record  in  favor  of 
the  legislation  without  finally  adopting  any  legislation  at  all. 
The  bicameral  system  enables  unrepresentative  or  corrupt  legis- 
latures to  defeat  by  chicanery  legislation  which  they  would  not 
have  the  courage  to  kill  openly.  It  enables  the  "organization" 
to  divide  the  responsibility  for  unpopular  work  between  two  sets 
of  committees. 

The  operation  of  the  bicameral  system  in  New  York  has  been 
made  the  subject  of  a  careful  study.1  "When  considering  the 
final  argument  for  the  bicameral  principle,  that  it  serves  as  a 
check  to  hasty,  ill-considered,  and  careless  legislation,  there  is 
danger  of  becoming  confused  by  the  great  mass  of  measures  with 
which  a  legislature  has  to  deal.  There  are  so  many  bills  that 
careful  and  adequate  consideration  is  exceedingly  difficult  in 
the  short  period  of  the  session,  and  with  the  many  demands  upon 
the  time  of  most  legislators.  The  bicameral  system  permits 
consideration  by  two  different  bodies.  Two  hasty  considerations 
may  not  be  as  good  as  one  thorough  one,  but  they  may  be  better 
than  one  hasty  one.  The  effect  of  a  second  consideration  is 
shown  by  the  fact  that  19  per  cent  of  the  bills  passing  one  house 
were  killed  in  the  second,  and  15  per  cent  of  the  bills  passing  both 
houses  were  amended  in  the  second.  However,  it  has  been  noted 
that  most  of  the  bills  defeated  were  comparatively  unimportant 
ones.  The  number  would  probably  have  been  considerably  less 
if  the  first  house  had  accepted  full  responsibility.  Two  con- 
siderations do  not  necessarily  mean  a  double  consideration. 
There  is  a  tendency  to  assume  that  a  subject  has  been  considered 
in  the  other  house  when  the  consideration  has  been  very  in  ade- 
quate ;  or  sometimes  one  house  passes  a  bill  with  the  expectation 
that  the  other  house  will  deal  with  it  more  carefully.  There  is 
frequently  a  shifting  of  responsibility.  It  is  also  customary  to 
advance  bills  advocated  by  the  party  leaders.  The  important 
bills  are  determined  upon  by  the  party  leaders  and  upon  these 
the  second  chamber  is  of  little  additional  usefulness  in  furnish- 
ing consideration.  The  present  system  tends  to  make  the 
party  boss  or  group  of  party  leaders  the  determiners  of  what 

1  D.  L.  Colvin,  The  Bicameral  Principle  in  the  Nra  York  Legislature,  in  Columbia 
University  Studies  in  History,  Economics,  and  Public  Law. 


266       STATE  GOVERNMENT  IN  UNITED  STATES 

shall  be  passed,  as  it  is  the  party's  function  to  control  both 
houses."  * 

The  operation  of  the  bicameral  system  in  states  where  party 
organization  is  less  coherent  than  in  the  New  York  legislature 
has  never  been  studied  with  equal  thoroughness.  Doubtless  the 
system  operates  in  various  ways  under  different  conditions.  In 
most  states  where  the  normal  procedure  prevails,  the  results  ap- 
pear to  correspond  closely  to  those  noted  in  the  case  of  New  York, 
except  that  the  legislative  machine  is  even  less  responsible  than 
in  New  York.  In  all  these  states  the  chief  barrier  to  the  flood 
of  bills  is  the  system  of  committees.  Indeed,  many  of  the  bills 
which  are  introduced  are  never  expected  to  get  further  than  the 
committee  stage.  Of  the  bills  that  are  favorably  reported  from 
committee  comparatively  few  fail  to  pass.  In  a  few  states,  where 
the  number  of  legislators  and  the  volume  of  business  is  compara- 
tively small,  the  importance  of  the  committees  is  less,  and  that 
of  discussion  on  the  floor  of  the  legislative  halls  greater.  In 
Arizona,  for  example,  a  majority  of  the  bills  introduced  into  the 
lower  house  during  the  regular  session  of  1915  were  killed  on  the 
floor  of  the  house,  and  nearly  as  many  were  killed  in  the  senate 
after  passing  the  lower  house  as  were  killed  by  the  house  com- 
mittees. More  than  a  third  of  the  senate  bills  were  killed  on  the 
floor  of  the  senate,  and  nearly  as  many  after  passing  that  body 
were  killed  in  the  house.  Very  few  bills  were  killed  in  the  senate 
committees.  But  Arizona  has  one  of  the  smallest  legislatures, 
and  in  1915  had  the  smallest  volume  of  legislative  business.  And 
at  that  two  extra  sessions  had  to  be  called  finally  to  pass  all  neces- 
sary measures.  In  most  states  such  deliberate  procedure  is  im- 
practicable under  existing  conditions.  Control  of  time  and  busi- 
ness has  to  be  exercised  by  somebody.  In  practice  it  is  exercised 
by  the  speaker  and  committee  chairmen,  acting  as  a  rule  less  as 
party  leaders  than  as  mere  "organization"  or  "machine"  men. 
Between  the  interests  of  the  party  and  of  the  "organization"  there 
may  be,  and  often  is,  a  wide  gap.  In  none  of  these  states  is  the 
process  of  legislation,  as  President  Wilson  phrased  it,  "a  straight- 
forward thing  of  simple  method,  single,  unstinted  power,  and 
clear  responsibility."  In  all  these  states  the  division  of  the  legis- 
lature into  two  separate  houses  makes  the  process  of  legislation 

1 D.  L.  Colvin,  The  Bicameral  Principle  in  the  New  York  Legislature,  pp.  187-188. 


THE  STATE  LEGISLATURES  267 

less  straightforward.    It  stints  every  power  of  the  legislator 
except  that  to  evade  responsibility.1 

FURTHER  REFORM  OF  LEGISLATIVE  METHODS 

The  abolition  of  the  bicameral  system  and  the  establishment  of 
unicameral  legislatures  would  not  of  itself  sufficiently  improve 
the  process  of  legislation.  It  is  only  a  single  thorough  considera- 
tion of  measures,  not  a  single  hasty  one,  which  can  be  expected 
to  be  much  better  than  two  hasty  considerations.  In  order  to 
secure  one  thorough  consideration  of  measures,  five  other  changes 
would  be  necessary  in  most  states.  The  first  is  to  increase  the 
time  allowed  for  the  transaction  of  legislative  business.  No  legis- 
lature with  its  session  limited  to  forty  or  sixty  days  can  ever 
become  a  genuine  deliberative  body.  The  existence  of  the  fixed 
time  limit  is  a  standing  invitation  to  all  those  who  hope  to  gain 
by  avoiding  due  deliberation  to  postpone  every  important  meas- 
ure to  the  last  minute,  when  deliberation  is  impossible.  A  second 
necessity  is  the  adoption  of  rules  of  procedure  which  will  ensure 
the  careful  consideration  of  every  important  measure  by  the 
main  body  of  legislators.  A  combination  of  the  rules  adopted  in 
Massachusetts  to  ensure  the  consideration  of  all  measures  by  the 
main  body  of  legislators  and  of  those  adopted  in  New  York  to 
ensure  due  deliberation  in  their  proceedings  would  be  required. 
Thirdly,  it  is  necessary  to  keep  the  membership  of  the  legislatures 
within  the  limits  which  permit  of  deliberation.  Large  bodies  of 
legislators  must  inevitably  delegate  their  task  of  deliberation  to 
smaller  bodies  which  can  handle  it.  The  legislature  must  be 
small  enough  for  the  whole  number  to  be  accommodated  in  a 
hall  where  each  member  can  be  readily  heard  by  his  associates. 
Fourthly,  it  is  necessary  to  pay  legislators  a  living  wage.  Three, 
four,  or  five  dollars  a  day  is  totally  inadequate  compensation  for 
men  who  in  most  cases  must  leave  their  homes  and  neglect  their 
private  businesses.  The  high  cost  of  nominations  and  elections 
makes  a  bad  matter  worse.  Unless  legislators  are  to  supplement 
their  official  wages  by  prostituting  their  public  position  to  pur- 

1  It  might  seem  that  the  two  houses  would  exert  a  more  useful  check  upon  one 
another  in  such  states  as  Massachusetts,  but  in  practice  the  system  of  joint  com- 
mittees tends  to  neutralize  the  normal  effects  of  the  bicameral  system. 


268       STATE  GOVERNMENT  IN  UNITED  STATES 

poses  of  private  gain,  the  only  men  who  can  afford  to  go  to  most 
legislatures  are  those  so  poor  that  they  have  nothing  to  lose  or 
so  rich  that  they  need  not  care  how  much  they  lose.  The  sub- 
stitution of  a  single  house  with  a  limited  membership  for  the 
present  arrangements  would  enable  most  states  to  pay  their 
legislators  a  suitable  salary  without  any  increase  of  cost  to  the 
people. 

Finally,  it  is  necessary  to  limit  the  volume  of  legislative  busi- 
ness. The  work  which  falls  upon  the  legislatures  of  most  of  the 
states  is  too  great  to  permit  the  bulk  of  it  to  be  disposed  of  except 
by  summary  process.  The  legislatures  are  attempting  to  do 
altogether  too  much.  Relief  must  be  secured  by  the  further 
limitation  of  legislative  powers. 

CLASSIFICATION  OF  WORK  OF  LEGISLATURES 

The  strictly  legislative  work  of  the  state  legislatures  falls  into 
four  classes.  The  first  relates  to  the  selection  of  matters  con- 
cerning which  there  shall  be  legislation.  To  a  certain  extent 
this  function  is  assumed  by  the  state  conventions  of  the  political 
parties.  The  party  platforms  generally  promise  legislative 
action  on  a  few  matters.  These  promises  unfortunately  are  fre- 
quently too  vague  to  be  of  much  practical  assistance  to  the  legis- 
latures. To  a  greater  extent  the  state  governors  have  assumed 
the  function  of  leadership  in  the  formulation  of  legislative  pro- 
grams. Their  messages  to  the  legislatures  at  the  opening  of  the 
session  generally  contain  some  indication  of  matters  to  be  con- 
sidered with  a  view  to  action.  Since  the  governor  is  armed  with 
the  appointing  and  veto  powers,  his  recommendations  are  bound 
to  be  considered,  regardless  of  his  party  affiliation.  If  he  is  dis- 
posed to  make  vigorous  use  of  these  powers  in  order  to  promote  a 
legislative  program  of  his  own,  he  becomes  a  more  influential 
legislator  than  any  single  member  of  the  legislature  itself,  not 
even  excepting  the  speaker.  Public  recognition  of  this  fact  has 
caused  the  governor  to  accept  a  responsibility,  which  the  framers 
of  the  original  state  constitutions  would  have  regarded  as  un- 
constitutional, for  the  action  of  the  legislature  upon  the  principal 
public  issues.  Executive  usurpation  of  legislative  prerogatives 
has  been  sanctioned  by  public  opinion,  because  the  governor  has 


THE  STATE  LEGISLATURES  269 

tended  to  stand  for  the  interests  of  the  state  as  a  whole,  being 
elected  in  the  state  at  large,  whilst  the  members  of  the  legisla- 
tures have  only  too  often  stood  for  local  and  private  interests 
within  their  several  districts.  The  bad  judgment  of  the  legis- 
latures hi  the  selection  of  matters  concerning  which  there  should 
be  legislative  action  has  been  one  of  the  principal  causes  of  that 
decline  in  the  public  esteem  which  has  been  noted  by  every 
critical  observer  of  the  state  legislatures  from  the  time  of  the 
Federal  Convention  of  1787  down  to  the  New  York  convention 
of  1915. 

The  second  class  of  legislative  work  relates  to  the  collection 
of  the  information  upon  which  intelligent  legislative  action  must 
be  based.  No  legislator  can  be  well  informed  by  his  own  study 
or  experience  concerning  more  than  a  small  proportion  of  the 
many  matters  which  he  is  called  upon  during  the  course  of  a 
session  to  consider.  The  notion  that  legislators  are  omniscient 
citizens,  who  can  pass  judgment  upon  any  subject  after  a  short 
debate  on  the  floor  of  the  house,  is  as  obsolete  as  powdered  wigs 
and  knee  breeches.  Like  the  jury,  which  was  once  composed  of 
men  who  knew  all  about  the  case  at  bar  and  has  come  to  be  com- 
posed of  men  who  know  nothing  about  it,  the  legislature  must 
now  for  the  most  part  be  instructed  concerning  the  matters  upon 
which  they  are  to  act  by  those  who  know.  In  default  of  further 
information,  the  general  body  of  members  must  ordinarily  accept 
the  opinion  of  the  committee  which  has  the  matter  in  charge,  or 
of  the  party  leaders.  There  are  three  principal  methods  of 
obtaining  further  information.  First,  in  cases  of  unusual  im- 
portance or  difficulty,  the  legislature  may  appoint  a  special  in- 
vestigating committee,  or  authorize  the  appointment  by  the  gov- 
ernor of  a  special  commission  to  make  all  necessary  and  proper 
investigations.  Such  investigating  bodies  may  be  armed  with 
the  power  to  subpoena  witnesses,  administer  oaths,  and  take  tes- 
timony generally.  Secondly,  the  legislature  may  direct  some 
administrative  official  or  department  to  present  a  report  on  a 
designated  subject.  This  method  is  appropriate  in  cases  of  ordi- 
nary importance  or  difficulty.  In  general,  however,  the  legisla- 
tures rely  mainly  upon  the  third  method.  This  method,  in  most 
states  not  formally  recognized  at  all,  is  that  commonly  called 
lobbying. 


270        STATE   GOVERNMENT  IN  UNITED   STATES 

The  lobby  is  the  collective  name  for  men  who  make  it  their 
business  to  instruct  members  of  the  legislature.  Not  all  lobbyists 
are  undesirable  factors  in  the  legislative  process.  Persons  seek- 
ing to  influence  the  course  of  legislation  may  be  animated  by  the 
most  disinterested  motives.  Their  assistance  may  be  invaluable 
to  conscientious  legislators  in  search  of  reliable  information  about 
pending  measures.  Chambers  of  commerce,  boards  of  trade,  em- 
ployers' associations  of  various  kinds,  trade  unions  and  labor 
organizations  of  various  kinds,  farmers'  alliances,  and  philan- 
thropic societies,  as  well  as  business  corporations  and  private 
interests,  send  their  representatives  to  the  halls  of  legislation. 
Lobbyists,  however,  do  not  ordinarily  engage  in  this  business 
merely  as  a  pastime.  Their  professional  success  depends  in  the 
long  run,  no  matter  whom  they  may  serve,  upon  the  fate  of  the 
measures  they  are  engaged  to  promote  or  oppose.  Their  advan- 
tages over  the  ordinary  private  member  are  very  great.  Being 
either  past  members  of  the  legislature,  or  at  least  experienced  in 
legislative  work,  they  know  the  rules  better  than  he.  Being 
picked  men,  they  are  either  abler  or  more  unscrupulous  than  he. 
Being  personally  interested,  they  are  far  better  informed  on  the 
subject  than  he.  Being  supported  in  many  cases  by  powerful 
business  organizations,  they  are  not  unlikely  to  be  more  influen- 
tial with  the  legislative  "organization."  By  collusion  with  the 
leaders  they  may  compel  the  ordinary  members  to  support  their 
measures.  Or  they  may  compel  the  leaders  to  support  their 
measures  by  manipulation  of  the  ordinary  members.  Even 
without  actual  corruption,  the  lobby  may  easily  exercise  an  un- 
due influence  upon  the  course  of  legislation.  In  fact,  with  or 
without  the  use  of  corrupt  practices,  the  lobby  has  exercised  an 
undue  influence  upon  legislation,  and  the  knowledge  of  this  fact  is 
the  second  of  the  principal  causes  for  the  decline  of  the  state  legis- 
latures in  public  esteem. 

The  third  class  of  legislative  work  relates  to  the  drafting  of 
bills.  With  respect  to  the  former  classes  of  legislative  work  the 
failure  of  the  legislatures  is  to  a  certain  extent  a  matter  of  opinion. 
With  respect  to  the  drafting  of  legislation  their  incompetence  is 
plainly  recorded  in  the  statute  books.  Crude,  almost  illiterate, 
legislation  is  constantly  coming  to  light  through  the  proceedings 
of  the  state  courts ;  laws  which  cannot  be  intended  to  mean  what 


THE   STATE  LEGISLATURES  271 

they  say,  and  laws  which  mean  nothing,  are  not  uncommon.  A 
regulation  found  in  the  road  law  of  one  state  that  no  one  shall 
operate  a  political  steam  roller  or  band  wagon  on  the  highway 
doubtless  was  put  there  in  jest,  but  there  is  nothing  funny  about 
a  provision,  found  hi  the  same  state,  that  proprietors  of  hotels 
shall  keep  the  walls  and  floors  of  their  rooms  covered  with 
plaster.  In  Massachusetts,  where  things  are  supposed  to  be 
done  better,  one  legislature,  in  trying  to  prevent  the  display  of 
the  red  flag  of  anarchy  upon  the  highway,  succeeded  in  forbidding 
Harvard  students  from  carrying  their  college  banner  to  the  foot- 
ball field.  The  most  astonishing  revelation  is  contained  in  a 
recent  address  of  the  governor  of  Kansas.  "Notwithstanding 
the  fact  my  executive  clerk  and  the  attorney-general  did  their 
best  to  scrutinize  all  the  bills,  chapters  177  and  178,  and  chap- 
ters 174  and  175,  respectively,  are  duplicates.  Chapter  75  of 
the  laws  of  1911  was  repealed  three  times.  .  .  .  Chapter  318  of 
the  laws  of  1913  was  immediately  amended  by  chapter  319  of 
the  laws  of  1913.  Chapter  82  of  the  laws  of  1911  was  repealed 
by  section  7  of  chapter  89  of  the  laws  of  1913,  and  after  being, 
repealed  was  then  amended  and  repealed  by  chapter  108  of  the 
laws  of  1913."  l  "What  is  commonly  called  the  technical  part 
of  legislation  is  incomparably  more  difficult  than  what  may  be 
called  the  ethical.  In  other  words,  it  is  far  easier  to  conceive  justly 
what  would  be  useful  law  than  so  to  construct  that  same  law 
that  it  may  accomplish  the  design  of  the  lawgiver."  2 

The  fourth  class  of  legislative  work  relates  to  the  actual  con- 
sideration and  enactment  of  legislation.  This  class  of  work  is, 
indeed,  the  prime  function  of  legislative  bodies.  But  the  task 
of  considering  proposed  legislation  has  been  largely  delegated,  as 
the  study  of  legislative  procedure  shows,  to  the  committees. 
The  final  enactment  of  laws,  though  formally  executed  by  the 
whole  body  of  members,  in  many  cases  amounts  to  little  more 
than  the  registration  of  the  decision  previously  reached  by  the 
legislative  "machine."  Where  the  legislative  "machine"  is  also 
to  a  sufficient  extent  a  partisan  machine,  as  in  New  York,  such 
a  practice  is  not  wholly  irresponsible.  But  where  the  legislative 

1  Address  of  Governor  Hodges  before  the  House  of  Governors,  Colorado  Springs, 
Aug.  26,  1913. 

J  Quoted  from  John  Austin  by  Governor  Hodges  in  the  address  cited  above. 


272       STATE  GOVERNMENT  IN  UNITED  STATES 

machine  cannot  be  successfully  identified  with  anything  which 
can  be  brought  to  account  by  the  state  electorate  as  a  whole,  as 
is  the  case  in  most  states  possessing  the  normal  type  of  procedure, 
such  a  practice  is  highly  irresponsible.  It  readily  lends  itself  to 
the  control  of  legislation  by  the  "invisible  government."  It  is 
not  surprising,  therefore,  that  much  legislation  has  been  enacted 
by  the  state  legislatures,  which  the  people  did  not  want  and 
which  was  not  in  their  interest,  and  much  legislation  has  been 
defeated,  which  the  people  did  want  and  which  would  have  been 
in  their  interest.  The  irresponsibility  of  the  legislatures  in  the 
consideration  and  enactment  of  legislation  is  the  final  cause  of 
their  decline  in  public  esteem.1 

FURTHER  LIMITATION  OF  LEGISLATIVE  POWERS 

The  decline  of  the  state  legislatures  in  public  esteem,  as  has 
been  shown,  began  at  the  very  beginning  of  the  independence  of 
the  states.  It  has  proceeded  ever  since  without  any  interruption. 
The  methods  which  have  hitherto  been  employed  to  check  that 
decline 2  have  failed  to  accomplish  their  purpose.  The  limitation 
of  legislative  procedure  by  constitutional  provisions  has  generally 
been  beneficial  so  far  as  it  has  gone.  But  it  cannot  go  far  enough 
to  afford  an  adequate  remedy.  The  limitation  of  the  forms  of 
legislative  action  must  be  supplemented  by  the  chastening  of  its 
spirit.  The  limitation  of  legislative  powers  has  mitigated  a  num- 
ber of  specific  evils.  But  such  a  remedy  is  necessarily  imperfect. 
It  throws  a  burden  upon  the  constitution-amending  organs,  the 
conventions  and  electorates,  which  those  organs  were  not  designed 
to  bear.  It  cannot  prevent  the  legislatures  from  all  wrongdoing 
without  preventing  them  from  doing  anything  at  all.  It  is  a 

1  The  evidence  of  recent  dissatisfaction  with  the  work  of  the  state  legislatures  is 
abundantly  set  forth  in  the  writings  of  those  political  critics  who  have  collectively 
come  to  be  known  as  "  muckrakers."    The  classic  period  of  "  muckraking  "  extended 
from  1904,  the  date  of  publication  of  Lincoln  Steffens's  The  Shame  of  the  Cities, 
to  1910,  when  Speaker  Cannon  of  the  national  House  of  Representatives  was  de- 
posed from  the  chairmanship  of  the  Committee  on  Rules.    The  work  of  the  "muck- 
rakers"  was  of  very  unequal  value,  and  much  of  it  was  ephemeral.    A  well-bal- 
anced, though  unduly  pessimistic,  criticism  of  the  state  legislatures,  antedating 
the  era  of  "  muckraking,"  is  E.  L.  Godkin's  "The  Decline  of  the  State  Legislatures," 
in  Unforeseen  Tendencies  in  Democracy  (N.  Y., 

2  See  ante,  ch.  v. 


THE  STATE  LEGISLATURES  273 

remedy  that  cures  disease  only  by  killing  the  patient.  The  object 
of  legislative  reform  should  be,  not  to  prevent  the  legislatures 
from  legislating  badly,  but  to  permit  them  to  legislate  well. 
Upon  this  principle  the  limitation  of  the  length  of  legislative 
sessions  is  manifestly  unsound.  That  extreme  remedy  has  in 
fact,  as  has  been  shown,  merely  aggravated  the  evil.  Legisla- 
tion is  a  necessary  function  of  the  state.  There  can  be  no  better 
organ  of  legislation  in  a  populous  state  than  a  rightly  organized 
representative  legislature.  But  the  existing  legislatures  cannot 
be  expected  to  rehabilitate  themselves  so  long  as  they  remain 
overburdened  with  non-legislative  duties.  The  most  promising 
method  of  restoring  the  legislatures  to  their  rightful  place  in 
public  esteem  is  to  relieve  them  of  such  classes  of  work  as  are 
not  inseparable  from  the  consideration  and  enactment  of  laws, 
and  permit  them  to  concentrate  their  powers  upon  the  perform- 
ance of  their  proper  duties. 

The  first  three  classes  of  legislative  work  described  above  are 
necessary  preliminaries  to  the  work  of  legislation,  but  they  are 
not  inseparable  from  it.  The  selection  of  the  matters  concerning 
which  there  shall  be  legislation  has  already,  to  a  slight  extent,  been 
taken  out  of  the  hands  of  the  legislatures.  The  process  can  be 
further  extended.  Party  initiative  in  state  legislation  may  be 
encouraged  and  party  responsibility  made  more  effective  by  the 
separation  of  state  from  national  party  organization.  Executive 
initiative  may  be  encouraged  by  a  readjustment  of  relations 
between  executive  and  legislature.  Executive  responsibility  may 
be  made  more  effective  by  a  reorganization  of  the  executive 
branch  of  the  state  governments.  These  suggestions  will  be  dis- 
cussed more  fully  in  later  chapters.  The  collection  of  informa- 
tion also  has  already  to  a  slight  extent  been  taken  out  of  the 
hands  of  the  legislatures.  This  process  likewise  can  be  further 
extended.  The  appointment  of  special  investigating  commissions 
where  special  investigations  are  necessary,  the  assistance  of  the 
permanent  administrative  officers  in  matters  subject  to  their 
jurisdiction,  the  support  of  legislative  reference  libraries l  for 
the  supply  of  general  information  :  these  are  means  of  procuring 
information  which  are  much  less  freely  employed  than  would  be 

1  Charles  McCarthy,  The  Wisconsin  Idea,  pp.  214-218.     See  also,  F.  C.  Howe, 
Wisconsin,  an  Experiment  in  Democracy,  p.  47. 
T 


274       STATE  GOVERNMENT  IN  UNITED  STATES 

possible.  Their  more  general  use  is  greatly  to  be  desired.  The 
technical  part  of  legislation,  the  drafting  of  bills,  has  been  im- 
proved in  some  states  by  the  employment  of  professional  drafts- 
men, usually  in  connection  with  the  legislative  reference  libra- 
ries.1 This  should  be  done  in  all  states.  As  John  Stuart  Mill 
wisely  said:  "There  is  hardly  any  kind  of  intellectual  work 
which  so  much  needs  to  be  done  not  only  by  experienced  and 
exercised  minds,  but  by  minds  trained  to  the  task  through  long 
and  laborious  study."  2  Few  members  of  the  state  legislatures 
are  adequately  prepared  to  do  this  kind  of  work.  None  should 
be  needlessly  burdened  with  it. 

REGULATION  OF  THE  LOBBY 

The  most  difficult  of  the  problems  that  must  be  solved,  if  the 
legislatures  are  to  regain  their  rightful  prestige,  is  that  created 
by  the  pernicious  activities  of  the  lobby.  Many  just  indictments 
have  been  drawn  of  the  insidious  and  corrupting  influence  of  un- 
scrupulous lobbyists.  It  is  enough  to  cite  one  of  the  most 
deliberate  of  these  indictments.  Said  Governor  Russell  of 
Massachusetts  in  a  message  to  the  legislature  of  that  state : 
"There  exists  hi  this  state,  as  in  other  states,  an  irresponsible 
body  known  as  the  lobby,  representing  or  preying  upon  special 
interests,  which  professes  and  undertakes  for  hire  to  influence  or 
control  legislation.  Its  work  is  wholly  distinct  and  different 
from  advocacy  of  one's  cause  in  person,  or  by  counsel  or  agent, 
which  is  the  constitutional  right  of  every  one.  It  seeks  often  to 
control  nominations  and  elections,  and  to  subject  the  legislator, 
directly  or  indirectly,  to  secret  and  improper  influences.  It 
throws  suspicion  upon  the  honest  and  temptation  in  the  way  of 
the  dishonest.  Professing  greater  power  than  it  has,  it  frequently 
extorts  money  as  the  price  of  its  silence  or  unnecessary  assistance. 
It  has  initiated  legislation,  attacking  the  interests  of  its  clients 
in  order  to  be  hired  to  defend  those  interests.  It  has  caused  the 
expenditure  of  large  sums  of  money  to  obtain  or  defeat  legisla- 
tion. It  cares  little  for  the  merits  of  a  measure  or  the  means 

1  See  Nebraska  Legislative  Reference  Bureau,  Bulletin  No.  4,  Reform  of  Legis~ 
lative  Procedure  and  Budget  in  Nebraska,  pp.  24-26. 
1 J.  S.  Mill,  Representative  Government,  ch.  v. 


THE  STATE  LEGISLATURES  275 

employed  to  make  it  successful.  In  my  judgment  improper 
measures  have,  by  its  influence,  been  made  law,  against  the 
public  interest,  and  just  measures  have  been  defeated.  These 
criticisms  have  not  been  based  upon  rumor  or  conjecture,  but 
upon  facts  reported  after  most  thorough  investigation  by  your 
predecessors,  who  denounced  the  evil  hi  unsparing  terms  and 
diligently  sought  a  remedy."  1 

It  is  far  easier,  as  Governor  Russell  candidly  confessed,  to 
state  the  evil  than  to  suggest  the  remedy.  "  Clearly  it  is  impos- 
sible and  improper  to  prevent  a  constituent  or  any  other  person 
from  having  the  freest  access  to  a  legislator.  This  constitutional 
right  guaranteed  to  the  people  gives  opportunity  to  the  lobby  to 
do  its  work.  Prevention  by  non-intercourse  is  therefore  impos- 
sible." 2  Prevention  by  publicity  is  constitutionally  possible. 
Indeed  provision  had  already  (1890)  been  made  in  Massachu- 
setts for  the  publication  of  the  names  of  lobbyists  and  the  sums 
of  money  paid  to  them.  This  act  for  the  regulation  of  the  lobby 
was  based  upon  a  distinction  between  different  kinds  of  lobbyists. 
Lobbyists  employed  merely  to  appear  before  legislative  com- 
mittees and  make  oral  arguments  were  denominated  legislative 
counsel.  Lobbyists  employed  not  only  to  make  oral  arguments 
before  committees  but  also  to  interview  individual  legislators 
were  denominated  legislative  agents.  Legislative  counsel  and 
agents,  before  doing  any  lobbying,  were  required  to  register  their 
names  on  separate  lists  with  the  sergeant-at-arms,  stating  the 
names  of  their  employers  and  the  titles  of  the  bills  in  connection 
with  which  they  were  employed.  Within  thirty  days  after  the 
close  of  the  session  legislative  counsel  and  agents  were  required 
to  file  separate  statements,  showing  the  total  sums  of  money 

1  Message  to  Legislature,  January,  1891.  Reprinted  in  P.  S.  Reinsch,  Readings 
on  American  Slate  Government,  p.  79.  See  also  "Report  of  the  Committee  to  Investi- 
gate Methods  used  for  and  against  Legislation  concerning  Elevated  Railroads  and 
to  inquire  into  the  Conduct  of  Members  of  the  House  in  connection  therewith,  with 
the  Evidence  taken  at  the  Hearings  of  the  Committee  and  Arguments  of  Counsel." 
Massachusetts  Legislative  Documents,  House  No.  585,  1890.  This  committee  recom- 
mended the  enactment  of  a  law  for  the  regulation  of  the  lobby,  which  was  done. 
This  report  can  be  matched  by  similar  reports  and  findings  in  every  part  of  the 
Union.  The  best  known  of  these,  and  the  most  instructive,  is  the  report  of  the 
Hughes  investigation  into  the  political  expenditures  of  life  insurance  companies 
in  New  York,  1905. 

'Ibid. 


276       STATE  GOVERNMENT  IN  UNITED  STATES 

received  as  compensation  for  their  services.  Their  employers 
were  likewise  required  to  report  the  sums  of  money  paid  to 
lobbyists  for  the  purpose  of  influencing  legislation.  Governor 
Russell  believed  that  good  would  come  from  this  act,  if  fairly 
and  thoroughly  enforced,  but  that  it  fell  short  of  being  a  sufficient 
remedy.  It  would  make  public  the  names  of  hired  lobbyists, 
but  not  in  the  case  of  "agents"  the  nature  of  their  activities. 
It  would  make  public  the  expenses  incurred,  but  too  late  to 
affect  the  legislation  in  connection  with  which  they  were  in- 
curred. 

Experience  has  shown  that  Governor  Russell's  opinion  of  the 
Massachusetts  act  for  the  regulation  of  the  lobby  was  sound. 
The  mere  registration  of  the  names  of  lobbyists  amounts  in  itself 
to  little.  It  enables  the  press  to  know  more  readily  who  are 
employed  to  influence  legislation,  and  by  whom.  The  legislators 
themselves  are  likely  to  know  this  anyway  in  every  case  in  which 
the  agent  would  be  willing  voluntarily  to  reveal  the  identity  of  his 
principal.  Every  year  after  the  close  of  the  session,  too  late,  as 
Governor  Russell  pointed  out,  to  affect  legislation,  the  public  is 
furnished  with  a  quantity  of  obsolete  information  concerning  the 
revenues  of  the  members  of  the  lobby.  But  no  more  is  known 
than  before  about  the  use  to  which  the  lobbyists  devoted  their 
revenues.  The  means  of  checking  up  untruthful  returns  are  in- 
adequate, and  in  general  the  enforcement  of  the  act  leaves  much 
to  be  desired.  Like  the  early  legislation  designed  to  prevent 
corrupt  practices  at  elections  by  publicity  of  campaign  funds, 
the  Massachusetts  law  to  regulate  the  lobby  is  a  good  deal  of  a 
sham.  Governor  Russell  suggested  that  it  be  strengthened  by 
empowering  some  public  officer,  before  a  measure  finally  becomes 
law,  to  demand  under  oath  a  full  and  detailed  statement  con- 
cerning the  expenditure  of  money  by  lobbyists  and  their  em- 
ployers ;  but  this  has  never  been  done.  The  Massachusetts  plan 
for  the  regulation  of  the  lobby  has  been  adopted  in  Maryland 
and  Wisconsin,1  but  in  general  the  regulation  of  corrupt  practices 
in  connection  with  legislation  is  left  mainly  to  the  courts. 

The  courts  have  shown  themselves  unable  to  cope  with  the 
situation.  They  have  recognized  that  it  is  the  right  of  every 

1  See  M.  A.  Schaffner,  Lobbying  (Comparative  Legislation  Bulletin,  No.  2,  Legis- 
lative Reference  Department,  Wisconsin  Free  Library  commission). 


THE  STATE  LEGISLATURES  277 

citizen  who  is  interested  in  any  proposed  legislation  to  employ  a 
paid  agent  to  collect  evidence  and  facts,  to  draft  his  bill  and 
explain  it  to  any  committee  or  to  any  member  thereof  or  of  the 
legislature  fairly  and  openly ;  and  that  lobbyists'  services  which 
are  intended  to  reach  only  the  reason  of  those  sought  to  be  in- 
fluenced are  not  improper,  provided  that  the  lobbyists'  agency  is 
disclosed.  Contracts  for  secret  lobbying  and  personal  solicita- 
tion have  generally  been  held  to  be  illegal,  but  the  evils  of  lobby- 
ing are  little  affected  by  making  certain  lobby  contracts  illegal 
and  void.  Such  contracts  become  subjects  of  litigation  only 
when  the  system  of  lobbying  is  imperfectly  organized.  The  real 
menace  arises  when  principal  and  agent  work  harmoniously 
together  against  the  public  interests  for  private  ends.1  Former 
Governor  LaFollette  of  Wisconsin  is  the  most  conspicuous 
among  a  group  of  reformers  who  urged  more  drastic  legislation 
against  the  lobby.2  Governor  LaFollette's  suggestion  was  that 
hired  lobbyists  should  be  forbidden  to  attempt  personally  and 
directly  to  influence  any  member  of  the  legislature  to  vote  for 
or  against  any  measure  affecting  the  interests  represented  by 
such  lobbyist.  He  believed  that  "every  legitimate  argument 
which  any  lobbyist  has  to  offer,  and  which  any  legislator  ought 
to  hear,  can  be  presented  before  committees,  before  the  legisla- 
tors as  a  body,  through  the  press,  from  the  public  platform,  and 
through  printed  briefs  and  arguments  placed  in  the  hands  of  all 
members  and  accessible  to  the  public."  To  permit  more  than 
that,  he  urged,  gives  an  undue  advantage  to  the  interests  that 
can  afford  to  maintain  a  permanent  lobby  throughout  the  session, 
to  say  nothing  of  the  temptation  to  corruption  inseparable  from 
any  system  which  permits  personal  solicitation  of  legislators  by 
lobbyists.  LaFollette's  suggestions,  however,  were  not  adopted 
in  his  own  state.3 

1  See  Marshall  vs.  Baltimore  and  Ohio  Railroad,  16  Howard,  314,  and  Trist  vs. 
Child,  21  Wall,  441.  But  cf.  Foltz  vs.  Cogswell,  86  Cal.,  542,  where  "honest  per- 
sonal solicitation"  is  held  not  to  be  illegal. 

a  See  his  Annual  Message  to  the  Legislature  of  1905.  A  special  message  of  the 
same  governor,  dealing  more  fully  with  the  same  subject,  is  reprinted  in  Reinsch's 
Readings  on  American  State  Government,  pp.  81-84. 

*  For  detailed  accounts  of  the  working  of  the  lobby  system,  see  Lynn  Haines, 
The  Minnesota  Legislature  of  IQOQ,  and  The  Minnesota  Legislature  of  IQII,  and 
F.  Hichborn,  Story  of  the  Session  of  the  California  Legislature  of  1909,  and  the  same, 
1911,  and  1913. 


278       STATE  GOVERNMENT  IN  UNITED  STATES 

OUTLOOK  FOR  LEGISLATIVE  REFORM 

The  legislature  cannot  reform  the  lobby,  unless  it  first  reforms 
itself.  Doubtless  the  state  legislatures  are  now  on  the  whole 
somewhat  less  venal  than  a  generation  ago.  Observers  who  have 
been  in  the  best  position  to  know  say  so.1  Certainly  not  a  little 
has  been  done  by  the  legislatures  in  recent  years  tending  to 
correct  some  of  the  worst  abuses.  The  adoption  of  laws  or  rules 
forbidding  members  of  the  legislature  to  accept  fees  for  their 
advocacy  of  measures  before  legislative  committees  has  corrected 
a  gross  abuse  in  many  states.  The  adoption  of  anti-pass  laws, 
designed  to  prevent  the  railroads  from  furnishing  legislators 
with  free  transportation,  has  struck  a  heavy  blow  at  a  principal 
source  of  the  undue  influence  of  the  railroad  lobby.2  The  better 
regulation  of  nominations  and  elections  has  tended  to  make 
more  difficult  one  of  the  methods  employed  by  lobbyists  for  in- 
fluencing the  action  of  legislators.  The  establishment  of  public 
service  commissions,  with  jurisdiction  over  the  rates  and  services 
of  railroads  and  public  utilities,  has  mitigated  another  evil.  It 
has  not  only  relieved  the  legislatures  of  the  responsibility  for  the 
details  of  regulation.  It  has  also,  so  far  as  such  corporations 
are  concerned,  deprived  dishonest  legislators  of  any  reasonable 
pretext  for  the  introduction  of  "strike"  legislation,  that  is,  of 
bills  not  intended  to  be  passed  but  merely  to  serve  as  a  means 
of  extortion  from  the  corporations.  The  further  development  of 
reliable  administrative  agencies  for  the  regulation  of  corporate 
affairs,  where  the  regulation  of  technical  details  is  necessary,  will 
do  much  to  diminish  the  opportunity  for  corruption  in  legislative 
bodies. 

No  scheme  for  the  restoration  of  legislative  prestige  is  worth 
much  which  does  not  recognize  that  the  greatest  accomplice  of 
legislative  corruption  is  legislative  inefficiency.  Much  of  the 
work  now  attempted  by  the  state  legislatures  is  work  for  which 

1  Perhaps  as  good  an  opinion  as  any  on  this  matter  is  that  of  Theodore  Roosevelt. 
See  his  Autobiography,  pp.  76  ff. 

2  For  an  interesting  revelation  of  another  side  of  the  evil  of  free  passes,  see  a 
letter  from  an  official  of  the  Pennsylvania  Railroad  to  the  president  of  the  New  York 
State  Constitutional  Convention  of  1894,  a  dozen  years  before  the  enactment  of  the 
anti-pass  laws,  reprinted  in  C.  A.  Beard,  Readings  in  American  Government  and  Poli- 
tics, pp.  478-481. 


THE  STATE  LEGISLATURES  279 

large  representative  bodies  are  not  fitted.  No  inconsiderable 
portion  of  the  output  of  legislation,  so-called,  consists  of  meas- 
ures of  an  administrative  or  quasi-judicial  character.  Practically 
all  private  and  local  legislation  is  of  this  character.  Fully  half 
the  time  of  the  legislative  committees  is  devoted  to  the  considera- 
tion of  such  measures.  In  states  like  Massachusetts,  where  there 
are  comparatively  few  restrictions  upon  legislative  powers  and 
procedure,  hundreds  of  bills  are  introduced  every  year  on  such 
petty  matters  as,  for  example,  whether  John  Smith,  having  been 
discharged  for  cause,  shall  be  reinstated  in  the  Boston  Fire 
Department.  In  states  like  New  York,  where  legislative  powers 
and  procedure  are  more  strictly  limited  by  the  constitution,  the 
situation  is  scarcely  less  discreditable.  Such  constitutional  limi- 
tations as  those  providing  that  only  one  subject  shall  be  con- 
tained in  any  one  bill,  and  that  that  subject  shall  be  clearly 
expressed  in  the  title,  tend  to  diminish  the  opportunity  for  legis- 
lative corruption.  But  they  do  little  to  increase  legislative  effi- 
ciency. Such  constitutional  limitations  as  those  providing  that 
legislatures  shall  not  legislate  at  all  on  certain  subjects  make 
more  work  for  constitutional  conventions  and  state  electorates. 
But  they  do  not  help  the  legislatures  to  act  more  wisely  upon 
those  matters  which  are  left  to  legislative  discretion.  The  most 
promising  plan  for  the  further  improvement  of  the  character  of 
legislation  is  the  adoption  of  such  further  limitations  on  legisla- 
tive powers  and  procedure  as,  without  restricting  the  scope  of 
legislative  action,  will  permit  the  more  systematic  use  of  ad- 
ministrative and  quasi- judicial  methods  and  machinery  in  the 
process  of  legislation. 


CHAPTER  X 
THE  STATE  EXECUTIVES 

THE  progress  of  democracy  during  the  first  half  of  the  nine- 
teenth century,  as  has  been  shown,  had  two  principal  effects 
upon  the  development  of  the  state  executives.  The  first  was 
the  establishment  of  executive  independence  of  the  legislature. 
The  second  was  the  decentralization  and  disintegration  of  the 
executive.  The  direct  popular  election  of  the  principal  executive 
officers  made  them  more  independent  of  the  legislatures  than 
they  ever  could  have  been  under  the  original  system  of  legislative 
election.  The  abolition  of  executive  councils  chosen  from  and 
by  the  legislatures  further  secured  the  independence  of  the 
executive.  The  direct  popular  election  of  the  principal  executive 
officers,  however,  at  the  same  time  that  it  rendered  them  more 
independent  of  the  legislatures,  also  rendered  them  more  in- 
dependent of  one  another.  The  governor,  secretary  of  state, 
treasurer,  attorney-general,  and  other  central  officers  became 
supreme,  each  in  his  own  department.  They  became  severally 
and  equally  responsible  to  the  people.  In  a  word,  the  executive 
branch  of  the  state  governments  became  what  is  technically 
known  as  a  plural  executive.  The  direct  popular  election  of 
subordinate  and  local  administrative  officials  produced  a  similar 
effect.  The  sheriff,  county  clerk,  county  treasurer,  prosecuting 
attorney,  and  other  similar  officials  became  supreme,  each  in 
his  own  department.  They  became  severally  and  equally  re- 
sponsible to  the  people.  Thus  the  state  executives  were  de- 
centralized as  well  as  disintegrated.  By  the  middle  of  the 
nineteenth  century  this  process  had  gone  as  far  as  it  could  in 
most  states.  There  remained  few  important  administrative 
offices,  either  central  or  local,  which  were  not  filled  by  popular 
election. 

280 


THE  STATE  EXECUTIVES  281 

THE  DISORGANIZATION  OF  ADMINISTRATION 

The  effect  of  executive  decentralization  and  disintegration 
during  the  first  half  of  the  nineteenth  century  was  to  make  the 
governor  the  chief  executive  in  name  only.  The  strictly  execu- 
tive powers  originally  conferred  upon  him,  as  has  been  shown, 
were  not  great.  He  could  command  the  militia.  Beyond  that, 
he  could  do  nothing  without  calling  a  meeting  of  his  council. 
With  the  advice  and  consent  of  his  council,  he  could  appoint 
all  officials  not  elected  by  the  legislature  or  by  the  people,  and 
in  general  could  order  and  direct  the  affairs  of  state  according 
to  the  constitution  and  laws.  His  principal  duty  was  to  take 
care  that  the  laws  were  properly  enforced.  To  this  end  he  could 
direct  his  attorney-general  to  prosecute  offenders.  In  case  of 
need  he  could  also  call  out  the  militia.  But  his  main  reliance 
for  the  enforcement  of  law  was  placed  in  the  sheriffs  and  justices 
of  the  peace.  By  the  appointment  of  vigilant  and  energetic 
sheriffs  and  of  prudent  and  independent  justices  of  the  peace 
he  could  secure  a  spirited  and  efficient  administration.  Now  the 
developments  of  the  first  half  of  the  nineteenth  century  left 
him  practically  no  means  of  enforcing  the  laws  except  by  calling 
out  the  militia.  This  was  too  drastic  a  weapon  for  ordinary 
use.  The  direct  election  of  subordinate  and  local  administrative 
officials  deprived  the  governor  of  his  control  over  the  executive 
branch  of  the  government.  The  attorney-general,  and  especially 
the  sheriffs  and  local  prosecutors,  became  the  real  executives, 
so  far  as  responsibility  for  the  enforcement  of  the  laws  was  con- 
cerned. The  governor  had  ceased  to  be  much  more  than  a  figure- 
head in  the  conduct  of  state  administration. 

The  effect  of  executive  independence  of  the  legislature  was 
to  increase  the  importance  of  the  legislative  functions  of  the 
executive.  This  was  inevitable  under  the  circumstances.  The 
direct  election  of  the  governor  by  the  people  made  him  the  most 
conspicuous  representative  of  the  whole  people.  The  develop- 
ment of  the  party  system  made  him  the  most  important  party 
leader  holding  office  in  the  state  government.  The  develop- 
ment of  the  veto  power  made  him  a  member  of  the  law-making 
organ  of  the  state.  The  disorganization  of  the  executive  branch 
of  state  government  left  him  no  effective  means  of  controlling 


282        STATE  GOVERNMENT  IN  UNITED  STATES 

his  nominal  subordinates  except  through  the  enactment  of 
special  legislation.  Executive  orders  had  to  be  issued  in  the 
form  of  statutes.  Since  the  people  were  prone  to  hold  the 
governor  responsible  for  the  enforcement  of  law,  despite  the 
weakness  of  his  position  as  an  administrative  officer,  he  was 
inevitably  driven  to  employ  his  legislative  authority  for  purely 
administrative  purposes.  Since  the  rank  and  file  of  the  party 
were  prone  to  hold  the  governor  responsible  for  the  redemption 
of  the  promises  in  the  party  platform,  despite  the  nominal 
separation  between  legislative  and  executive  powers,  he  was 
inevitably  driven  to  employ  his  legislative  authority  also  for 
purely  legislative  purposes.  In  states  where  the  veto  power 
reached  its  fullest  development,  a  governor  gifted  with  the  quali- 
ties of  leadership  was  not  only  a  member,  but  the  most  powerful 
single  member,  of  the  legislative  branch  of  the  government. 
In  short,  the  office  of  governor  was  removed  from  the  field  of 
administration  to  the  field  of  legislation.  The  governor  was 
transformed  from  a  chief  executive  into  a  chief  legislator  of  the 
state. 

The  transformation  of  the  governor  into  a  legislator  left 
the  political  party  as  the  principal  bond  of  union  between  the 
different  members  of  the  executive  branch  of  the  state  govern- 
ments. This  bond  was  totally  inadequate  for  the  purpose  of 
enforcing  a  systematic  and  efficient  conduct  of  affairs.  Candi- 
dates for  state  and  local  administrative  offices  on  the  same 
party  ticket  were  bound  to  make  common  cause  with  one  another 
during  the  campaign.  After  election,  however,  their  community 
of  interest  centered  around  the  problem  of  reelection  rather 
than  around  the  work  of  public  administration.  Party  ties 
had  their  place  in  purely  political  affairs,  but  except  for  the 
governor  the  administrative  officers  had  no  legitimate  connec- 
tion with  affairs  of  that  nature.  State  or  county  administrative 
officers  might  form  rings  for  their  mutual  political  benefit,  but 
they  rarely  formed  rings  for  the  benefit  of  the  public.  Between 
state  and  local  officials,  party  ties  as  such  were  of  even  less  use 
in  promoting  systematic  and  efficient  administrative  action. 
The  local  officials  were  primarily  responsible  to  the  party  only 
within  their  own  localities.  Under  such  circumstances  the 
party  could  serve  as  an  instrument  of  administrative  organiza- 


THE  STATE  EXECUTIVES  283 

tion  only  in  so  far  as  there  was  an  extra-legal  party  organization 
to  which  partisans  in  public  office  could  be  held  responsible. 
The  leaders  of  the  party  organizations,  the  "bosses,"  whether 
or  not  also  the  occupants  of  the  principal  executive  offices,  were 
the  men  who  could  exert  most  influence  upon  the  course  of 
administration.  But  such  influences,  as  has  been  pointed  out, 
were  more  commonly  exerted  for  private  than  for  public  ends. 
In  general,  the  state  or  local  official  who  was  elected  by  the 
people  was  left  free  to  determine  for  himself  how  the  duties  of 
his  office  should  be  performed.  The  disorganization  of  state 
administration  was  in  striking  contrast  to  the  centralization  and 
integration  of  party  management. 

The  principal  force  making  for  unity  and  coherence  in  the 
conduct  of  state  administration  was  the  judiciary.  As  early  as 
1830,  De  Tocqueville  with  his  usual  sagacity  detected  the  im- 
portance of  the  judiciary  in  administrative  affairs.  Noting 
that  "  there  is  no  point  which  serves  as  a  center  to  the  radii  of 
the  administration,"  he  inquired:  "How  then  can  the  govern- 
ment be  conducted  on  a  uniform  plan  ?  and  how  is  the  compliance 
of  the  counties  and  their  magistrates,  or  the  townships  and  their 
officers,  enforced?"  His  answer  was:  "The  courts  of  justice 
are  the  only  possible  medium  between  the  central  power  and  the 
administrative  bodies ;  they  alone  can  compel  the  elected  func- 
tionary to  obey,  without  violating  the  rights  of  the  elector.  The 
extension  of  the  judicial  power  in  the  political  world  ought, 
therefore,  to  be  in  the  exact  ratio  of  the  extension  of  the  elective 
power :  if  these  two  institutions  do  not  go  hand  in  hand  the 
state  must  fall  into  anarchy  or  into  servitude."  l  The  courts 
of  justice,  however,  could  only  command  the  administrative 
officer  to  perform  acts  required  of  him  by  law,  in  cases  of  negli- 
gence on  his  part,  or  enjoin  him  from  performing  acts  not  au- 
thorized by  law,  in  cases  of  usurpation  of  power  on  his  part. 
They  could  not  compel  him  to  do  with  energy  and  zeal  what  he 
was  inclined  to  do  listlessly  and  with  indifference.  They  could 
not  compel  him  to  act  at  all  in  cases  where  action  or  inaction 
was  a  matter  of  administrative  discretion.  The  courts  themselves 
could  not  act  upon  their  own  motion,  but  only  upon  the  suit  of  a 
citizen  or  another  administrative  officer,  or  upon  presentment 

1  De  Tocqueville,  Democracy  in  America,  i,  ch.  v. 


284       STATE  GOVERNMENT  IN  UNITED  STATES 

or  indictment  by  a  grand  jury.  The  courts  could  at  most  pro- 
duce compliance  by  particular  administrative  officers  with  the 
letter  of  the  law  governing  their  particular  offices.  They  could 
not  produce  spirited  and  efficient  cooperation  between  the  various 
members  of  the  administrative  branch  in  general.  By  the 
middle  of  the  century,  after  the  adoption  of  the  direct  popular 
election  of  judges,  they  themselves  had  become  responsible  to 
the  same  electorates  as  the  administrative  officials.  The  ex- 
tension of  the  judicial  power  in  the  political  world,  as  De  Tocque- 
ville  would  say,  was  no  longer  in  the  same  ratio  as  the  extension 
of  the  elective  power. 

It  must  not  be  supposed  that  the  results  of  this  administrative 
anarchy  were  very  injurious  to  the  public.  Under  the  conditions 
that  then  existed  they  were  not.  In  the  middle  of  the  nineteenth 
century  there  was  little  need  for  an  elaborately  organized  ad- 
ministrative system  under  the  direct  control  of  the  state  govern- 
ments. For  the  most  part  the  federal  government  had  under- 
taken the  services  which  could  not  well  be  performed  by  the 
local  authorities  in  towns  and  counties.  It  was  an  individualistic 
age.  Every  man  was  taught  to  look  to  the  courts  for  the  pro- 
tection of  his  personal  rights,  and  to  the  legislatures  for  the 
redress  of  general  grievances.  Little  was  expected  of  the  ad- 
ministrative branch  of  the  state  government,  and  that  little 
was  done  tolerably  well.  Politicians  able  to  procure  their 
nomination  and  election  to  state  administrative  offices  were 
necessarily  men  of  some  initiative  and  resourcefulness.  Men 
who  lacked  those  qualities  were  not  likely  to  shoulder  their  way 
to  the  front.  In  addition  to  initiative  and  resourcefulness, 
common  honesty  was  the  principal  qualification  for  holding 
such  offices.  The  burden  of  administration  fell  upon  the  local 
authorities,  and  so  long  as  the  requirements  of  local  adminis- 
tration were  not  too  technical,  they  were  capable  of  giving 
satisfactory  service.  As  De  Tocqueville  very  justly  observed, 
the  administrative  effects  of  the  decentralized  system  of  adminis- 
tration were  of  less  consequence  than  the  political.1  Popular 
elections  and  rotation  in  office  gave  many  citizens  an  oppor- 
tunity to  participate  in  the  actual  conduct  of  affairs.  If  their 
work  was  not  done  so  well  as  it  might  have  been  by  professional 

1  De  Tocqueville,  Democracy  in  America,  i,  ch.  v. 


THE  STATE  EXECUTIVES  285 

administrators,  at  least  it  was  their  own,  and  they  loved  it. 
The  people  had  an  affection  for  such  a  system,  which  they  could 
not  have  felt  so  strongly  for  one  more  efficient  but  imposed 
from  above.  That  affection  was  diffused  over  all  the  processes 
of  government;  the  citizen  was  warmly  attached  to  the  state, 
and  proud  of  it  as  a  bigger  and  better  self. 

TENDENCY  TOWARDS  ADMINISTRATIVE  REORGANIZATION 

Before  the  process  of  democratizing  and  thus  disorganizing 
the  executive  branch  of  the  state  governments  had  been  com- 
pleted, a  counter  tendency  towards  administrative  reorganization 
began  to  emerge.  The  first  cause  of  this  new  tendency  was  the 
impulse  to  state  enterprise  resulting  from  the  success  of  the 
Erie  Canal  and  the  refusal  of  the  national  government,  after 
the  accession  of  the  Jacksonian  Democracy  to  power,  to  under- 
take internal  improvements  at  national  expense.  A  more  profit- 
able field  for  state  enterprise  in  most  states  was  presently  found 
in  the  development  of  free  public  education,  and  later  of  the 
higher  education.  Both  DeWitt  Clinton  and  Horace  Mann 
inspired  many  imitators.  With  the  coming  of  the  railroad  the 
policy  of  internal  improvements  at  state  expense  was  generally 
abandoned,  but  the  policy  of  state  enterprise  in  the  field  of 
education  has  become  more  firmly  established  with  the  passage 
of  the  years.  A  second  cause  was  the  growth  of  new  forms  of 
industry  and  of  industrial  organization  requiring  a  radical  ex- 
tension of  the  police  power  of  the  state.  The  development  of 
banking  and  insurance,  of  railroading  and  the  supply  of  monop- 
olistic public  services  of  various  kinds,  compelled  the  individual 
to  look  to  the  state  for  active  assistance  by  special  administrative 
officials  in  order  to  prevent  irreparable  frauds  and  oppressions. 
The  local  officials  could  not,  and  the  courts  did  not,  afford  the 
protection  that  was  needed.  The  growth  of  the  factory  system 
of  industry  and  the  development  of  a  permanent  wage-earning 
class  of  large  dimensions  has  forced  a  corresponding  growth  of 
a  new  social  conscience,  and  the  development  of  new  instru- 
mentalities for  the  maintenance  of  social  and  industrial  justice. 
The  advancement  of  science  brought  a  new  knowledge  of  methods 
of  conserving  human  and  natural  resources,  and  created  a  de- 


286       STATE  GOVERNMENT  IN  UNITED  STATES 

mand  for  the  services  of  experts  in  public  health  administration, 
in  the  supervision  of  industry,  and  in  the  promotion  of  agricul- 
ture. The  local  governments  could  not  afford  to  employ  such 
experts.  The  organization  of  expert  service  by  the  state  be- 
came necessary  and  proper.  Above  all,  the  progress  of  humanity 
brought  a  demand  for  better  care  for  defectives,  dependents,  and 
delinquents.  More  ample  provision  and  more  specialized  treat- 
ment was  demanded  for  the  sick  and  the  insane,  for  the  aged  and 
the  destitute,  for  the  petty  offenders  and  the  criminals.  The 
state  has  assumed  to  an  ever-growing  extent  the  support  of 
charities,  hospitals,  and  corrections.  In  a  word,  "  the  old  order 
changeth."1  A  new  age  dawns.  The  people  of  the  states  feel 
new  responsibilities  and  demand  new  instrumentalities  for  their 
discharge. 

The  most  conspicuous  sign  of  the  new  age  has  been  the  in- 
crease in  the  number  of  separate  state  administrative  agencies. 
In  Massachusetts,  one  of  the  first  states  in  which  the  tendency 
towards  the  development  of  new  administrative  agencies  ap- 
peared, the  reorganization  of  state  administration  began  in 
1837  with  the  establishment -of  the  State  Board  of  Education. 
The  office  of  Bank  Commissioner  was  established  in  1838,  the 
State  Board  of  Agriculture  in  1853,  the  office  of  Insurance  Com- 
missioner in  1855,  the  State  Board  of  Charity  in  1863,  the  office 
of  Tax  Commissioner  in  1865,  the  Commission  on  Fisheries  and 
Game  in  1866,  the  State  Board  of  Health,  the  Railroad  Com- 
mission, and  the  Bureau  of  Labor  Statistics  in  1869,  and  the 
office  of  Corporation  Commissioner  in  1870.  Since  then  the 
creation  of  new  offices,  boards,  and  commissions  has  proceeded 
apace.  At  present  there  are  more  than  one  hundred  separate 
administrative  agencies  of  the  central  government  charged 
with  the  direct  enforcement  of  law  or  with  the  supervision  of 
the  activities  of  local  administrative  authorities.2  In  Illinois, 
also,  there  are  more  than  one  hundred  separate  state  offices, 

1  See  the  very  interesting  and  suggestive  book,  bearing  that  title,  by  WilMam 
Allen  White  (New  York,  1909).     For  a  more  complete  and  scientific  statement,  see 
Herbert  Croly,  The  Promise  of  American  Life  (New  York,  1909).    See  also  Walter 
E.  Weyl,  The  New  Democracy  (New  York,  1912). 

2  See  Report  of  the  Massachusetts  Commission  on  Economy  and  Efficiency  on 
the  Functions,  Organization,  and  Administration  of  the  Departments  of  the  Execu- 
tive Branch  of  the  State  Government,  1914. 


THE  STATE  EXECUTIVES  287 

boards,  and  commissions,  created  by  statute,  in  addition  to 
those  created  by  the  constitution.  Less  than  a  fourth  of  those 
now  in  existence  were  created  before  1870,  and  more  than  a 
third  have  been  created  since  igoo.1  In  New  York  there  were 
in  1915  no  less  than  152  separate  state  administrative  agencies.2 
There  are  no  other  states  in  which  the  growth  in  the  activities 
of  the  central  government  has  produced  so  many  separate  ad- 
ministrative agencies  as  in  New  York.  But  there  is  no  state 
where  the  organization  of  the  administrative  branch  of  the 
government  retains  its  early  nineteenth-century  simplicity. 

A  less  conspicuous  but  more  important  sign  of  the  new  age 
has  been  the  increase  in  the  powers  of  the  state  administrative 
agencies.  This  tendency  will  appear  more  clearly  upon  ex- 
amination of  the  present  relations  between  the  central  and  the 
local  administrative  authorities  in  the  principal  departments 
of  state  administration. 

THE  MILITIA 

At  the  time  of  the  Revolution  the  most  important  depart- 
ment of  state  administration  was  the  military.  All  the  original 
state  constitutions  made  some  provision  for  the  organization 
and  control  of  the  militia.  In  the  Massachusetts  constitution 
military  administration  was  regulated  with  special  care.  The 
governor  was  declared  to  be  commander-in-chief  of  the  army 
and  navy  and  of  all  the  military  forces  of  the  state,  by  sea  and 
land,  and  was  entrusted  with  all  the  powers  of  a  captain-general 
and  commander-in-chief  and  of  an  admiral,  subject  only  to  the 
constitution  of  the  state  and  the  law  of  the  land.  After  the 
Revolution,  however,  the  state  maintained  no  military  forces 
except  the  militia,  and  the  actual  power  of  the  governor  over 
the  militia  was  strictly  limited  by  the  constitutional  provisions 
governing  its  organization.  Militia  captains  and  subalterns 
were  elected  by  the  "train-band  and  alarm  list"  of  their  re- 
spective companies,  regimental  field-officers  were  elected  by 

1  See  Report  of  the  Illinois  Efficiency  and  Economy  Committee,  1915,  p.  7. 

7  See  Report  prepared  for  the  Constitutional  Convention  Commission  by  the  New 
York  State  Department  of  Efficiency  and  Economy  and  the  New  York  Bureau  of 
Municipal  Research  on  the  Government  of  the  State  of  New  York,  1915,  p.  vii. 


288       STATE  GOVERNMENT  IN  UNITED  STATES 

the  captains  and  subalterns,  and  brigadiers  by  the  field-officers. 
The  major-generals  were  appointed  by  the  legislature,  the  two 
houses  voting  separately.  No  militia  officer  could  be  removed 
except  by  address  of  both  houses  to  the  governor  or  by  court- 
martial.  Thus  the  militia  organization  was  completely  decen- 
tralized, and  the  authority  of  the  governor  was  not  much  more 
than  nominal.  A  similar  form  of  organization  was  originally 
adopted  in  most  of  the  states.  By  the  Federal  Constitution  of 
1787  Congress  was  authorized  to  employ  the  militia  under  cer- 
tain circumstances  as  a  national  police  force,  and  to  that  end 
was  empowered  to  provide  for  its  organization,  equipment,  and 
discipline,  reserving  to  the  states  the  appointment  of  officers 
and  the  training  of  the  men  according  to  the  discipline  pro- 
vided by  Congress.  Despite  the  use  made  by  Congress  of 
these  powers,  notably  by  the  laws  of  1792  and  1903,  the  militia 
has  come  to  be  more  and  more  what  might  be  expected  from 
the  form  of  its  organization,  a  social  rather  than  a  military 
body. 

The  militia  is  consequently  a  very  ineffective  instrument  of 
the  police  power  of  the  state  and  of  the  nation.  The  federal 
government  depends  for  its  first  line  of  defense  upon  the  regular 
standing  army.  Until  1916  it  depended  for  the  second  line 
upon  volunteers  mustered  directly  into  the  national  service. 
The  militia,  or  national  guard,  as  it  had  come  to  be  called,  was 
regarded  rather  as  a  ready  source  of  volunteers  than  as  an 
integral  part  of  the  national  forces.  The  state  governments 
continue  to  rely  upon  the  militia  as  a  special  police  for  extraor- 
dinary occasions.  This  policy,  however,  has  tended  to  im- 
pair its  value  as  a  military  force  without  providing  the  states 
with  an  effective  state  police.  The  national  guard,  to  use  the 
modern  name,  is  too  clumsy  an  organization  to  be  of  any  value 
in  the  performance  of  minor  police  duties,  such  as  the  appre- 
hension of  ordinary  criminals.  It  is  too  unprofessional  in  char- 
acter to  give  satisfaction  in  the  performance  of  major  police 
duties,  such  as  the  preservation  of  order  in  the  presence  of 
serious  labor  disputes.  Its  use  in  connection  with  labor  dis- 
putes has  tended  to  discredit  every  form  of  military  service 
among  wage  earners,  and  its  incapacity  to  deal  with  real  crises 
has  discredited  it  with  practical  military  men.  The  need  of 


THE  STATE  EXECUTIVES  289 

some  more  specialized  central  police  force  has  been  felt  in  not 
a  few  of  the  states,  but  as  yet  little  has  been  done  to  meet  that 
need.  Pennsylvania  has  established  the  most  notable  state 
force  for  general  police  duty,  the  so-called  state  constabulary. 
It  was  organized  in  1906  on  the  general  model  of  the  Canadian 
northwestern  mounted  police,  and  consisted  of  four  troops  of 
fifty  men  each.  Massachusetts  established  a  state  detective 
force  in  1875,  intended  to  perform  certain  special  police  func- 
tions. This  force  was  reorganized  in  1879  as  the  district  police, 
and  employed  mainly  for  the  purpose  of  factory  and  building 
inspection.  In  general  the  development  of  state  police  forces 
has  taken  a  similar  form.  The  governor  has  no  responsibility 
for  the  maintenance  of  order  except  in  extraordinary  emergencies, 
and  possesses  no  adequate  means  of  dealing  with  such  emergen- 
cies. The  preservation  of  the  peace,  now  as  in  the  beginning, 
is  left  mainly  to  the  local  sheriffs  and  constables  in  the  rural 
districts,  and  to  the  municipal  police  in  the  cities.1 

EDUCATION 

At  the  present  time  the  most  important  department  of  state 
administration  is  that  of  education.  In  the  beginning  there 
was  little  provision  for  popular  education  at  public  expense. 
The  states  in  which  colleges  existed  at  the  time  of  the  Revolution 
gave  them  little  aid,  and  even  less  attention  was  paid  by  the 
state  governments  to  local  common  schools.  Outside  of  New 
England  there  were  few  localities  which  maintained  common 
schools.  Nowhere  was  attendance  compulsory,  nor  tuition 
free  except  for  those  who  could  not  afford  to  pay.  Since  that 
tune  free  common  school  systems  have  been  established  in  all 
states,  though  not  everywhere  in  such  a  manner  as  to  provide 
an  elementary  education  for  all  children.  In  most  states,  how- 

1  The  constitutions  of  the  states  still  make  the  traditional  provision  for  the  or- 
ganization of  the  militia.  In  general  it  is  provided  that  all  able-bodied  males,  or 
male  citizens,  or  white  male  citizens,  between  the  ages  of  eighteen  and  forty-five, 
except  those  classes  of  persons  expressly  exempted,  shall  be  enrolled  in  the  militia 
and  perform  such  military  duty  as  may  be  required  by  law.  In  practice  the  only 
enrolment  is  that  made  by  the  census  enumerators,  and  the  bulk  of  the  men  liable 
to  military  duty  are  unorganized.  Down  to  igr6  the  organized  militia  were  re- 
cruited by  voluntary  enlistment  and  in  most  states  the  enlistments  were  few. 
u 


290        STATE  GOVERNMENT  IN  UNITED   STATES 

ever,  attendance  at  the  pubb'c  schools  or  at  private  schools  of 
equivalent  grade  is  compulsory.  The  further  development  of 
the  state  systems  of  free  public  education  has  been  brought 
about  by  the  establishment  of  local  secondary  schools,  of  even- 
ing and  continuation  schools  for  the  further  general  education 
of  young  wage  earners,  of  trade  and  industrial  schools  for  special 
training  in  the  arts  and  crafts,  of  state  normal  schools  for  the 
better  training  of  common  school  teachers,  of  state  universities, 
agricultural,  mechanical,  and  professional  (except  theological) 
schools  for  the  higher  education,  of  special  schools  for  the  train- 
ing of  defectives  and  delinquents,  and  of  state  libraries  and 
traveling  institutes  for  the  further  education  of  adults.  This 
development  has  by  no  means  been  uniform  throughout  the 
states.  The  differences  in  state  common  school  systems  are 
clearly  reflected  in  the  rates  of  illiteracy.  The  rate  for  South 
Carolina  is  fifteen  times  the  rate  for  Iowa.  The  differences  in 
the  secondary,  higher,  and  more  specialized  school  systems  are 
equally  great,  though  not  so  easily  measured.  Almost  every- 
where, however,  the  state  governments  now  spend  more  money 
on  education  than  on  any  other  single  branch  of  state  adminis- 
tration. 

The  growth  of  the  educational  systems  of  the  states  has  been 
marked  by  a  progressive  shifting  of  control  from  local  to  central 
educational  authorities.  In  the  beginning  there  were  no  special 
educational  authorities  except  the  local  school  boards  and  com- 
mittees. At  present  practically  all  the  states  have  an  independ- 
ent department  of  education  under  an  executive  head,  known 
usually  as  the  state  superintendent  of  public  instruction.  Most 
of  them  have  also  a  state  board  of  education  with  a  general 
educational  jurisdiction,  and  many  of  them  have  special  boards 
for  the  control  of  special  institutions,  such  as  normal  schools, 
training  schools  of  various  kinds,  and  state  universities.  The 
division  of  control  of  educational  matters  between  the  central 
and  the  local  authorities  varies  greatly.  There  are  still  a  few 
states  in  which  the  control  is  vested  almost  exclusively  in  the 
local  authorities.  In  such  states  the  central  authorities  have 
little  more  than  advisory  powers.  There  are  also  a  few  states 
in  which  the  local  authorities  are  little  more  than  the  agents 
of  the  central  authorities.  In  such  states  the  central  authorities 


THE  STATE  EXECUTIVES  291 

may  prescribe  the  curriculum  in  the  local  schools,  select  the 
textbooks,  examine  teachers  for  certification  as  to  their  quali- 
fications, and  exercise  extensive  powers  of  appointment  and 
removal  of  county  superintendents  and  other  local  authorities. 
They  may  administer  the  state  school  lands,  apportion  the 
state  school  funds,  and  in  some  cases  withhold  grants  from 
local  authorities  which  fail  to  reach  a  prescribed  standard  of 
efficiency.  They  may  appoint  inspectors  of  local  schools, 
regulate  the  construction  and  maintenance  of  school  buildings, 
especially  in  such  matters  as  ventilation  and  sanitation,  and 
operate  the  educational  institutions  directly  under  the  control 
of  the  state.  Most  of  the  states  fall  between  these  two  ex- 
tremes. The  centralization  of  educational  administration  has 
proceeded  more  rapidly  in  some  states  than  in  others,  but  every- 
where the  tendency  is  the  same. 

The  centralization  of  educational  administration  has  increased 
the  number  and  powers  of  the  state  educational  authorities,  but 
has  not  yet  brought  about  the  general  adoption  of  a  uniform 
plan  of  organization.  The  state  superintendent  of  public  in- 
struction, or  an  officer  of  the  same  character  under  another 
title,  exists  in  forty-seven  states.  In  most  states  he  is  elected 
by  the  people,  but  in  seven  he  is  appointed  by  the  governor 
and  senate,  and  in  four  he  is  appointed  by  the  state  board  of 
education.  The  terms,  salaries,  and  powers  of  these  officers 
vary  greatly.  In  a  few  states,  of  which  New  York  is  the  best 
example,  he  enjoys  security  of  tenure,  an  attractive  salary,  and 
broad  powers.  In  a  few  states,  of  which  Massachusetts  is  the 
best  example,  his  powers  are  less,  but  his  actual  influence  has 
been  very  great.  In  most  states  he  has  relatively  little  power, 
and  not  much  influence.  State  boards  of  education  exist  in 
forty  states.  They  are  organized  in  various  ways,  and  differ 
in  power  and  influence  no  less  widely  than  the  superintendents 
of  public  instruction.  Some  have  few  members,  some  have 
many.  Some  are  composed  entirely  of  state  officials,  serving 
ex  qfficio;  some  are  composed  of  members  elected  by  the  voters 
of  the  state  at  large  or  by  districts ;  some  are  composed  of 
members  elected  by  the  legislature;  some  are  composed  of 
members  appointed  by  the  governor ;  some,  of  members  ob- 
tained by  a  combination  of  these  and  other  ways.  In  some 


292       STATE  GOVERNMENT  IN  UNITED  STATES 

states  their  powers  are  very  small.  In  others  they  may  have 
charge  of  state  school  funds,  elect  a  secretary  or  commissioner 
who  acts  as  state  superintendent,  appoint  county  superintendents 
and  school  boards,  select  textbooks,  and  prescribe  curricula. 
In  several  states  they  manage  the  normal  schools,  besides  per- 
forming all  the  preceding  functions,  and  in  a  few,  of  which 
Oklahoma  is  the  best  example,  they  act  as  boards  of  control 
for  all  state  educational  institutions.  A  larger  number  of 
states  divide  these  functions  among  several  independent  bodies, 
creating  separate  boards  for  the  adoption  of  textbooks,  the 
administration  of  school  lands  or  funds,  the  management  of 
special  schools,  the  examination  of  teachers,  etc.,  hi  so  far  as 
these  matters  are  not  reserved  to  the  local  authorities.  There 
is  no  common  rule  for  the  division  of  power  between  the  differ- 
ent central  educational  authorities,  and  in  general  no  systematic 
arrangements  for  effective  cooperation  between  them. 

CHARITIES  AND   CORRECTIONS 

The  second  department  of  state  administration  in  order  of 
present  importance  is  that  which  relates  to  the  care  of  delin- 
quents, defectives,  and  dependents.  At  the  Revolution  prisoners 
of  all  kinds,  hardened  criminals,  petty  offenders,  persons  awaiting 
trial,  without  distinction  of  age,  sex,  or  other  condition,  were 
placed  in  the  custody  of  the  sheriff,  and  kept  by  him  in  such 
manner  as  he  should  see  fit,  commonly  at  a  charge  to  the  county 
of  so  much  per  capita,  like  livestock  in  a  pound.  Defectives 
were  not  accepted  as  public  charges  unless  they  had  committed 
some  offense  or  were  incapable  of  self-support.  In  the  former 
case  they  were  treated  like  other  lawbreakers;  in  the  latter, 
they  were  dealt  with  like  ordinary  paupers,  unless  supported 
by  their  relatives.  In  general,  the  deaf  and  dumb,  the  blind, 
the  feeble-minded,  and  the  insane  were  maintained  by  their 
nearest  relatives  in  their  homes.  Paupers  were  a  recognized 
charge  upon  the  locality  in  which  they  had  their  residence. 
Temporary  destitution  might  be  relieved  by  special  aid  ("out- 
door relief")  granted  under  the  supervision  of  the  local  over- 
seers of  the  poor.  Permanent  paupers  were  entitled  to  main- 
tenance at  public  expense  in  almshouses.  "Indoor  relief," 


THE  STATE  EXECUTIVES  293 

however,  in  an  age  which  tolerated  imprisonment  for  debt, 
was  likely  to  be  even  less  desirable,  from  the  standpoint  of  the 
victim,  than  imprisonment. 

A  deeper  knowledge  of  the  nature  and  causes  of  poverty  and 
crime,  and  a  broadening  sympathy  with  the  pauper  and  the 
transgressor,  has  brought  about  a  great  change  in  the  methods 
of  dealing  with  them.  In  the  first  half -century  after  the  Revolu- 
tion the  dawn  of  a  more  scientific  and  a  more  humane  age  was 
ushered  in  by  the  work  which  in  prison  reform  is  associated 
with  the  names  of  the  English  reformers,  John  Howard  and 
Elizabeth  Fry.  In  America  imprisonment  for  debt  was  abolished, 
jails  and  prisons  were  made  more  decent,  and  the  establishment 
of  penitentiaries  and  reformatories,  as  the  names  indicate,  marked 
the  adoption  of  more  enlightened  views  concerning  the  purposes 
of  punishment.  In  the  treatment  of  poverty  there  came  a 
conviction  that  society  should  undertake  more  than  the  mere 
relief  of  destitution.  The  duty  of  preventing  poverty,  so  far 
as  possible,  began  to  be  recognized.  In  America  during  the 
first  half  of  the  nineteenth  century  the  most  conspicuous  ex- 
pression of  this  growing  conviction  was  the  founding  of  Wash- 
ingtonian  Societies  for  the  promotion  of  temperance  in  the  use 
of  alcoholic  liquors.  This  movement  culminated  in  1850  in  the 
so-called  "Maine  idea,"  the  idea  of  statewide  prohibition  by 
law. 

The  reformation  of  the  original  system  of  charities  and  cor- 
rections has  been  based  upon  two  fundamental  principles :  the 
break-up  of  the  old  poor  law  and  the  old  penal  system,  and 
the  provision  of  specialized  treatment  for  the  different  classes 
of  dependents  and  delinquents.  The  poor  may  be  divided 
roughly  into  two  main  classes,  those  whose  poverty  seems  to 
be  due  to  causes  more  or  less  within  their  own  control,  and 
those  whose  poverty  is  due  to  other  causes.  The  belief  is  grow- 
ing that  the  latter  class  should  be  relieved  according  to  the 
nature  of  the  cause.  Systematic  and  effective  provision  can  be 
made  for  the  relief  of  the  victims  of  industrial  accidents,  occupa- 
tional diseases,  casual  sickness,  and  disability  due  to  old  age  by 
the  adoption  of  workmen's  compensation  acts  and  the  develop- 
ment of  general  systems  of  social  insurance.  Destitution  of 
the  able-bodied  due  to  involuntary  unemployment  can  be 


294       STATE  GOVERNMENT  IN  UNITED  STATES 

diminished  by  the  regularization  of  industry.  Where  relief  is 
necessary,  it  can  be  provided  more  scientifically  and  more 
humanely  by  the  shifting  of  the  cost  of  maintenance  during 
unavoidable  and  predictable  periods  of  unemployment  to  the 
industry  in  which  the  unemployment  occurs.  Destitution  of 
the  able-bodied  due  to  inefficiency,  so  far  as  it  results  from  lack 
of  skill  and  training,  can  be  met  by  the  further  development 
of  education.  Destitution  of  the  deaf  and  dumb  and  of  the 
blind  can  also  be  met  by  the  further  development  of  the  system 
of  education.  Their  cases  should  be  treated  as  an  educational, 
not  as  a  charitable,  problem.  The  former  class  of  poor,  those 
whose  poverty  seems  to  be  due  to  causes  more  or  less  within 
their  own  control,  should  not  only  be  relieved.  They  should 
be  so  treated  as  to  help  them  to  become  self-supporting.  Or- 
dinarily punishment,  as  by  incarceration  in  workhouses  (dis- 
tinguished from  almshouses  by  the  fact  that  relief  is  deliberately 
connected  with  work),  is  insufficient.  Drunkards,  for  example, 
should  be  helped  to  become  temperate  by  treatment  designed  to 
strengthen  their  will.  This  cannot  be  accomplished  by  break- 
ing their  pride  with  harsh  imprisonment.  Vagabonds  and  the 
"work-shy"  should  receive  special  treatment.  The  feeble- 
minded and  incurably  insane  should  be  segregated. 

The  growing  recognition  of  these  principles  has  brought  about, 
especially  in  recent  years,  an  unparalleled  demand  for  the  crea- 
tion of  new  agencies  of  relief  and  correction.  This  demand 
can  only  be  met  by  the  development  of  a  more  specialized  ad- 
ministrative organization.  In  many  cases  the  local  authorities 
do  not  carry  on  charitable  and  correctional  work  on  a  broad 
enough  scale  to  make  the  necessary  subdivision  of  labor  possible. 
They  cannot  afford  to  employ  the  proper  kinds  of  expert  ad- 
ministrators. The  states  have  consequently  been  forced  to 
assume  an  ever  growing  share  in  the  management  of  charitable 
and  correctional  institutions.  For  example,  the  care  of  the 
insane,  of  the  feeble-minded,  of  special  classes  of  offenders  such 
as  the  criminal  insane,  juvenile  delinquents,  and  alcoholics, 
and  the  treatment  of  the  tuberculous  poor,  is  supervised  or 
supported  to  an  ever  increasing  extent  by  the  central  authorities. 
The  development  of  modern  methods  of  punishment  has  caused 
a  further  growth  of  central  control.  Boards  of  pardon  and 


THE  STATE  EXECUTIVES  295 

parole  have  been  established  in  order  to  assist  the  governor 
in  the  exercise  of  his  power  of  pardon,  and  to  supervise  the 
conduct  of  offenders  whose  sentences  have  been  suspended 
during  good  behavior.  Boards  of  prison  industries  have  been 
created  in  order  to  bring  about  a  better  use  of  the  prisoner's 
time  while  under  restraint.  Contract  prison  labor,  and  the  pro- 
duction of  goods,  whether  within  or  without  prison  walls,  to  be 
sold  in  competition  with  the  products  of  free  labor,  tend  to 
give  way  before  the  development  of  prison  industries  which 
supply  the  needs  of  state  institutions  and  teach  the  prisoner  a 
trade.  Workmen's  compensation  acts  might  conceivably  be 
enforced  through  the  county  or  district  courts.  They  are 
actually  administered  by  special  state  commissions.  Mothers' 
pension  acts  are  more  generally  administered  by  local  authori- 
ties, but  all  the  proposed  plans  for  general  schemes  of  social 
insurance  contemplate  their  administration  by  the  central 
authorities.  In  short,  charitable  and  penal  administration,  and 
the  administration  of  those  new  public  activities  for  the  conserva- 
tion of  human  resources  which  are  neither  charitable  nor  penal, 
such  as  the  relief  of  the  victims  of  industrial  accidents,  tend  more 
and  more  to  fall  into  the  hands  of  the  central  administrative 
authorities  of  the  states. 

The  centralization  of  charitable  and  penal  administration, 
like  that  of  educational  administration,  has  not  yet  brought 
about  the  general  adoption  of  any  uniform  plan  of  organization. 
There  are  several  distinct  types  of  organization  corresponding 
to  different  stages  in  the  process  of  centralization  of  control. 
First,  there  may  be  a  separate  board  of  managers  for  each  chari- 
table and  penal  institution,  over  which  there  may  be  one  or  more 
central  boards,  with  power  to  inspect  public  institutions  under 
their  jurisdiction,  and  to  make  recommendations  to  their  man- 
agers. Such  central  boards  may  have  jurisdiction  over  private 
as  well  as  public  charities.  These  central  supervisory  bodies 
are  usually  interested  mainly  in  the  questions  of  general  policy 
arising  in  connection  with  institutional  management,  but  they 
may  also  supervise  the  details  of  fiscal  administration.  In 
California  there  is  a  single  state  board  of  control,  with  full 
powers  of  supervision  in  fiscal  affairs  over  all  public  institutions, 
and  with  no  powers  of  supervision  in  other  respects.  Secondly, 


296       STATE   GOVERNMENT  IN  UNITED  STATES 

there  may  be  local  boards  of  managers  for  each  institution, 
subject  to  general  supervision  by  one  or  more  central  boards, 
as  in  the  first  case.  In  addition,  the  central  board  or  boards 
or  an  independent  officer  may  also  be  intrusted  with  full  control 
of  financial  matters,  such  as  the  letting  of  contracts  for  construc- 
tion and  the  purchase  of  supplies.  In  New  York  there  is  both 
a  state  board  of  charities  and  a  fiscal  supervisor  of  state  chari- 
ties, a  state  commission  of  prisons  and  a  state  superintendent 
of  prisons.  There  is  also  a  state  commission  in  lunacy  for  the 
administration  of  the  insane  hospitals,  and  a  variety  of  minor 
state  administrative  agencies,  such  as  the  board  of  parole  of 
state  prisons  and  the  board  of  examiners  of  feeble-minded  crim- 
inals and  other  defectives,  with  jurisdiction  over  special  phases 
of  the  subject.  Finally,  there  are  two  private  associations,  the 
Prison  Association  of  New  York  and  the  State  Charities  Aid 
Association,  empowered  by  law  to  inspect  the  public  institutions 
and  to  report  to  the  state  administrative  authorities  or  to  the 
legislature.  Thirdly,  there  may  be  one  or  more  central  boards 
with  full  and  exclusive  control  over  the  administration  of  public 
charitable  and  penal  institutions.  Where  a  single  board  controls 
directly  all  the  institutions  of  this  general  character,  as  is  the 
case  in  a  quarter  of  the  states,  the  process  of  centralization  is 
complete.  In  the  greater  number  of  states,  however,  there  are 
mixed  systems  of  administration,  which  divide  power  and  re- 
sponsibility for  administration  between  different  central  authori- 
ties, and  between  the  central  authorities  and  the  local  authori- 
ties, in  many  different  ways.  The  present  tendency  seems  to 
be  toward  the  more  general  adoption  of  the  third  type  of  or- 
ganization, with  a  single  board  of  control  for  the  management 
of  all  public  institutions. 

PUBLIC  HEALTH  ADMINISTRATION 

Public  health  administration  at  the  Revolution  had  two  prin- 
cipal objects :  the  establishment  of  quarantines  against  con- 
tagious diseases,  and  the  abatement  of  nuisances.  Social  and 
economic  changes  and  the  progress  of  medical  science  in  the 
nineteenth  century  have  greatly  enlarged  the  scope  of  public 
health  administration,  but  the  activities  of  the  public  health 


THE  STATE  EXECUTIVES  297 

authorities  are  still  associated  with  one  or  the  other  of  those 
two  objects.  For  the  purpose  of  preventing  the  spread  of 
disease,  and  abating  nuisances  of  various  kinds,  prejudicial  to 
the  public  health,  very  extensive  though  unequal  powers  have 
been  conferred  upon  administrative  officials  in  all  the  states. 
Among  them  are  the  following:  (i)  the  power  to  investigate 
(a)  the  causes  of  disease,  for  example,  by  the  establishment  of 
cancer  research  laboratories,  (b)  the  prevalence  of  disease,  for 
example,  by  the  establishment  of  registration  areas  for  the 
recording  of  vital  statistics,  and  (c)  the  location  of  disease,  for 
example,  by  the  inspection  of  factories,  tenements,  etc.  (2)  Com- 
pulsory isolation  of  the  sick  at  home  or  in  hospitals.  (3)  Free 
medical  treatment  and  nursing,  for  example,  in  cases  of  tubercu- 
losis. (4)  Public  preventive  medicine  by  the  preparation  and 
distribution  of  vaccines,  antitoxins,  etc.  (5)  Medical  examina- 
tion of  immigrants  and  school  children.  (6)  Care  of  dead  bodies, 
if  necessary,  in  connection  with  transportation  and  burial. 
(7)  Free  diagnosis  of  disease  in  public  laboratories.  (8)  Dis- 
posal of  sewage,  garbage,  dust,  ashes,  smoke,  etc.  (9)  Suppres- 
sion of  offensive  trades  and  of  offenses  against  the  public  health 
or  morals.  (10)  Ventilation  and  illumination  of  factories  and 
workshops,  protection  of  workers  against  dangerous  machinery 
and  industrial  processes  injurious  to  health,  regulation  of  the 
hours  of  labor  of  men,  in  certain  occupations,  and  of  women 
and  children,  and  eventually  of  wages  as  well,  (n)  Prevention 
or  suppression  of  insanitary  housing  conditions  by  building  laws 
and  inspection.  (12)  Control  of  the  manufacture,  transporta- 
tion, and  sale  of  explosives  and  fireworks.  (13)  Control  or 
suppression  of  the  sale  of  impure  foods,  poisonous  drugs,  al- 
coholic liquors,  tobacco  (to  minors),  unclean  milk,  etc.,  and 
protection  of  the  purity  of  water  supplies.  (14)  Public  instruc- 
tion in  personal  and  social  hygiene,  and  the  suppression  of 
advertisements  and  printed  matter  detrimental  to  public  health 
and  morals.  (15)  Regulation  of  the  practice  of  all  professions 
connected  with  the  public  health,  such  as  medicine  and  surgery, 
nursing,  undertaking  and  embalming,  dentistry,  optometry, 
pharmacy,  veterinary  medicine,  plumbing,  etc.1 

'See  R.  C.  Cabot,  "The  Administration  of  Public  Health"  in  Cyclopedia  of 
American  Government,  ii,  pp.  117-121. 


298       STATE  GOVERNMENT  IN  UNITED  STATES 

This  enormous  expansion  in  the  activities  of  the  state  in 
relation  to  health  has  entailed  the  organization  of  an  elaborate 
system  of  public  health  administration.  In  the  beginning  there 
were  no  special  agencies,  either  state  or  local,  for  the  protection 
of  the  public  health.  In  general  the  ordinary  local  authorities 
were  expected  to  take  such  action  to  prevent  the  spread  of 
disease  as  local  public  opinion  and  the  medical  knowledge  of 
the  times  demanded.  In  case  of  extraordinary  epidemics  the 
governor  could  go  to  the  assistance  of  the  local  authorities, 
but  this  was  rarely  done.  The  abatement  of  nuisances  was 
largely  left  to  private  initiative  by  means  of  actions  in  the  courts 
of  law.  In  1787  Massachusetts  led  the  way  in  the  improvement 
of  public  health  administration  by  providing  that  each  town 
should  establish  a  local  board  of  health.  Many  towns,  how- 
ever, neglected  to  do  this.  It  was  not  until  after  the  Civil 
War  that  the  need  was  recognized  for  regular  state-wide  super- 
vision of  the  public  health  by  special  state  officials,  and  for 
systematic  cooperation  between  the  central  and  local  health 
authorities.  In  1869  Massachusetts  again  led  the  way  by  the 
establishment  of  a  state  board  of  health.  Since  then  central 
public  health  authorities  have  been  established  in  all  the  states. 
But  these  state  boards  of  health  have  been  granted  jurisdiction 
over  only  a  part  of  the  general  field  of  health  administration. 
Special  administrative  boards  or  offices  have  been  created  from 
time  to  time  in  the  several  states,  as  the  need  happened  to  arise, 
for  the  purpose  of  dealing  with  special  problems  relating  to 
public  health.  Thus,  boards  of  education  frequently  were 
authorized  to  enforce  the  laws  relating  to  the  health  of  school 
children,  boards  of  charity  and  of  insanity  were  generally  created 
or  charged  to  administer  the  laws  relating  to  the  health  of 
dependents,  special  food  and  dairy  commissioners  were  often 
appointed  to  enforce  the  laws  relating  to  the  inspection  of  foods 
and  milk,  the  enforcement  of  liquor  laws  was  left  to  the  sheriffs 
and  local  constables,  boards  or  commissioners  of  agriculture 
were  generally  charged  with  the  enforcement  of  the  laws  relat- 
ing to  the  health  of  domestic  animals,  the  inspection  of  tene- 
ments, factories,  workshops,  and  other  buildings,  mines,  eleva- 
tors, boilers,  etc.,  was  frequently  confided  to  separate  bureaus 
or  departments,  and  the  enforcement  of  laws  relating  to  the 


THE  STATE  EXECUTIVES  299 

hours  of  labor  and  wages  of  wage-earning  men  and  women  was 
entrusted  to  factory  inspectors,  boards  of  conciliation  and  arbi- 
tration, minimum  wage  commissions,  or  various  combinations 
thereof.  The  regulation  of  the  conditions  for  entrance  into 
the  professions  connected  with  the  public  health  and  the  ex- 
amination of  applicants  has  generally  been  divided  among 
a  number  of  separate  boards.  In  some  states  there  are  half 
a  dozen  or  more  such  boards,  each  independent  of  the  others. 
The  result  has  been  an  extraordinary  subdivision  of  authority 
and  diffusion  of  responsibility  among  a  confused  array  of 
central  agencies  for  the  administration  of  laws  relating  to 
health. 

Despite  the  confusion  resulting  from  the  division  of  public 
health  administration  among  so  many  independent  bodies, 
there  has  been  a  steady  drift  toward  the  centralization  of  control 
over  health  administration  in  the  hands  of  the  state  authorities. 
This  tendency  can  be  observed  most  clearly  in  the  evolution  of 
the  powers  of  the  original  state  health  authorities.  Three 
separate  stages  may  be  discerned.  The  first  state  boards  of 
health  were  authorized  to  make  investigations,  publish  reports, 
and  offer  advice  to  the  local  authorities.  The  second  stage  was 
reached  when  the  state  was  divided  into  health  or  sanitary  dis- 
tricts, and  the  central  board  was  empowered  to  appoint  district 
inspectors  with  wide  powers  of  direct  action  within  their  dis- 
tricts. This  stage  is  best  represented  by  the  existing  organiza- 
tion of  the  state  departments  of  health  in  Massachusetts,  New 
York,  and  Pennsylvania.  The  third  stage  was  reached  when 
the  central  authorities  are  granted  the  power  not  only  to  super- 
vise but  to  control  the  work  of  the  local  authorities.  In  more 
than  a  dozen  states  the  central  authorities  may  appoint  the 
local  health  officers,  if  the  local  governments  fail  to  appoint 
them,  and  may  remove  them,  if  they  neglect  their  duties  or 
are  incompetent  to  perform  them.  In  Vermont  and  Florida 
the  local  authorities  are  regularly  appointed  by  the  central 
authorities  and  act  as  their  agents.  In  several  states  local 
health  regulations  must  be  approved  by  the  central  authorities 
before  becoming  effective.  In  New  York  the  central  health 
authorities  are  authorized  to  enact  and  from  time  to  time  to 
amend  a  sanitary  code  for  the  whole  state  with  the  exception 


300       STATE  GOVERNMENT  IN  UNITED  STATES 

of  New  York  City,  and  the  local  authorities  are  required  to 
enforce  it  under  the  supervision  of  the  district  health  inspectors. 
Moreover,  as  in  a  number  of  other  states,  the  central  authorities 
may  themselves,  if  they  choose,  enforce  the  health  laws  in 
localities  where  no  local  authorities  have  been  appointed.  Thus 
a  high  degree  of  centralization  in  public  health  administration 
is  reached.  But  the  jurisdiction  of  these  state  departments  of 
health  is  ordinarily  limited  to  matters  of  general  concern. 

LABOR  LAW  ADMINISTRATION 

The  most  important  division  of  public  health  administration, 
not  commonly  placed  under  the  jurisdiction  of  the  state  boards 
of  health,  is  the  enforcement  of  the  laws  designed  for  the  special 
protection  of  industrial  wage  earners.  In  this  branch  of  public 
health  administration  there  has  also  been  a  constant  tendency 
to  increase  the  powers  of  the  central  authorities.  The  first 
administrative  authorities  charged  primarily  with  the  protection 
of  wage  earners  were  the  bureaus  of  labor  statistics.  In  1869 
Massachusetts  led  the  way  in  the  establishment  of  such  a  bureau. 
Like  the  original  state  boards  of  health,  its  duties  were  merely 
to  make  investigations,  publish  reports,  and  give  advice.  The 
next  step  in  the  protection  of  wage  earners  was  to  provide  for 
the  inspection  of  the  places  of  their  employment  for  the  pur- 
pose of  preventing  the  maintenance  of  conditions  dangerous  to 
life  and  limb  or  injurious  to  general  health.  Under  various 
laws,  provision  was  gradually  made  in  many  states  for  inspec- 
tion of  fire  hazards,  boilers,  mines,  dangerous  machinery  and 
processes  of  manufacture,  and  sanitation,  and  for  the  enforce- 
ment of  laws  limiting  the  hours  of  labor  and  other  conditions  of 
employment.  Meanwhile  the  states  were  beginning  to  regulate 
labor  conditions  in  other  respects  as  well  as  in  connection  with 
the  protection  of  the  public  health.  The  limitation  of  the 
hours  of  labor  and  the  fixing  of  minimum  wages  may  be  defended 
as  health  regulations,  but  the  establishment  of  a  board  for  the 
conciliation  and  arbitration  of  labor  disputes  must  be  defended 
as  a  measure  for  the  maintenance  of  industrial  peace.  Work- 
men's compensation  acts,  as  has  been  already  pointed  out,  fall 
within  the  scope  of  a  general  plan  of  social  insurance.  The 


THE  STATE  EXECUTIVES  301 

operation  of  state  free  employment  agencies,  and  the  protection 
and  distribution  of  alien  immigrants,  are  still  further  removed 
from  the  traditional  functions  of  health  authorities.  Because 
of  their  common  relation  to  the  interests  of  industrial  wage  earn- 
ers, however,  there  is  a  growing  tendency  towards  the  consolida- 
tion of  the  administrative  agencies  enforcing  these  various  labor 
laws.  Several  states  have  recently  created  departments  of 
labor,  for  the  enforcement  of  all  the  different  kinds  of  laws  re- 
lating to  labor,  notably  Wisconsin,  Ohio,  Pennsylvania,  and 
New  York.  Such  state  departments  of  labor  consequently 
cannot  be  classed  merely  as  divisions  of  public  health  adminis- 
tration. They  deal  also  with  many  matters  not  directly  re- 
lated to  the  conservation  of  public  health. 

AGRICULTURE 

The  same  tendencies  appear  in  the  administration  of  the 
laws  designed  for  the  special  benefit  of  farmers  and  stock  growers. 
In  many  states  the  activities  relating  to  the  interests  of  agricul- 
ture, horticulture,  dairying,  and  stock  growing  are  more  im- 
portant and  more  diversified  than  those  relating  to  the  interests 
of  industrial  wage  earners.  Some  of  the  activities  associated 
with  public  administration  in  relation  to  agriculture  and  allied 
interests  are  the  following:  the  collection  of  rural  statistics, 
the  holding  of  agricultural  fairs  and  farmers'  institutes,  the 
analysis  of  soils  and  fertilizers,  the  registration  of  livestock,  the 
study  and  suppression  of  animal  and  plant  diseases,  pests,  etc., 
the  inspection  of  herds  and  meat  products,  dairies  and  dairy 
products,  apiaries,  etc.,  the  grading  of  cotton,  wool,  grain,  etc., 
the  preservation  and  propagation  of  fish  and  game,  the  con- 
servation of  natural  resources  in  general,  especially  of  forests, 
and  reforestation,  drainage  of  swamp  lands,  and  irrigation,  the 
encouragement  of  agricultural  experimentation  and  poultry  and 
stock  breeding,  the  supervision  of  warehouses  and  commission 
merchants  and  of  the  supply  of  agricultural  labor,  the  examina- 
tion and  licensing  of  veterinarians,  the  inspection  of  fruits  and 
seeds,  trees,  shrubs,  and  plants,  and  the  regulation  of  cold  storage. 
The  result  has  been  the  creation  of  an  even  greater  number  of 
separate  administrative  agencies  than  in  the  case  of  labor  law 


302        STATE   GOVERNMENT  IN  UNITED  STATES 

administration.  Among  the  more  important  administrative 
agencies  of  this  character  are  the  following:  state  boards  or 
commissioners  of  agriculture,  state  veterinarians,  entomologists, 
chemists,  foresters,  fish  and  game  commissioners,  food  and 
dairy  commissioners,  inspectors  of  fertilizer,  hides,  apiaries, 
etc.,  state  fair  and  cattle  commissioners,  and  trustees  of 
agricultural  experiment  stations.  Protection  of  the  public 
health  comprises  manifestly  but  a  small  part  of  the  activities 
of  these  authorities.  They  are  expected  to  assist  in  the 
development  of  better  methods  of  raising  and  marketing  crops, 
to  stimulate  the  breeding  of  improved  grades  of  stock,  and 
in  general  to  encourage  rural  industry  and  enrich  country 
life. 

In  the  administration  of  the  laws  relating  to  rural  as  well  as 
urban  industry  there  has  been  a  constant  tendency  to  increase 
the  powers  of  the  central  administrative  authorities.  The  first 
state  boards  of  agriculture  had  advisory  powers  only.  They 
were  expected  to  stimulate  rural  industry  in  a  general  manner, 
and  in  particular  to  patronize  the  county  agricultural  fairs. 
Subsequently  these  state  boards  were  granted  greater  powers 
of  supervision.  For  example,  they  were  in  some  cases  author- 
ized to  apportion  state  funds  in  aid  of  county  fairs  on  condition 
that  the  fair  managers  complied  with  certain  requirements 
intended  to  make  the  fairs  more  serviceable  to  the  farmers. 
Eventually  in  a  few  states  they  were  themselves  authorized 
to  manage  state  fairs,  and  endowed  with  other  powers  of  direct 
control.  More  frequently,  however,  as  the  need  for  direct 
central  control  of  rural  services  was  recognized,  instead  of  con- 
ferring additional  powers  upon  the  original  boards  of  agriculture, 
special  agencies  were  created  wholly  independent  of  the  boards 
of  agriculture.  Eventually,  as  in  the  administration  of  the 
laws  relating  to  urban  industry,  the  need  for  closer  relations 
between  different  administrative  agencies  was  recognized. 
The  movement  began  for  the  organization  of  departments  of 
agriculture,  which,  like  the  departments  of  labor,  should  more 
effectually  correlate  the  activities  of  all  state  agricultural  au- 
thorities. In  nearly  half  the  states  there  are  now  organized 
agricultural  departments  in  which  are  united  a  considerable 
number  of  services.  This  is  notably  the  case  in  New  York, 


THE  STATE  EXECUTIVES  303 

Pennsylvania,  and  Ohio.  In  the  greater  number  of  states, 
however,  the  division  of  power  among  numerous  separate  ad- 
ministrative authorities  still  obtains.  In  the  administration 
of  the  laws  relating  to  rural  as  to  urban  industry,  there  has  been 
a  considerable  degree  of  centralization  of  control,  but  not  as 
yet  a  corresponding  degree  of  integration  of  organization. 


PUBLIC  WORKS 

At  the  Revolution  the  principal  public  works  constructed 
and  maintained  by  the  states  were  those  of  a  military  character. 
The  states  still  spend  a  good  deal  of  money  upon  armories  for 
the  use  of  the  militia.  The  growth  of  state  enterprise  in  the 
field  of  transportation  in  the  first  part  of  the  nineteenth  cen- 
tury has  left  a  few  states  with  more  or  less  useful  canals  on 
their  hands.  Of  these  New  York  is  the  chief.  At  present  the 
principal  public  works  of  the  states  fall  under  the  following 
heads:  (i)  highways;  (2)  waterworks  of  various  kinds,  including 
storage  reservoirs  for  urban  supply  and  irrigation,  river  and 
harbor  improvements,  drainage,  and  flood  prevention ;  (3)  state 
parks  and  reservations;  and  (4)  public  buildings  and  monu- 
ments. For  the  'administration  of  these  various  kinds  of  public 
works  a  corresponding  variety  of  administrative  agencies  has 
been  created.  For  the  most  part  the  administration  of  the 
public  works  of  the  states  is  completely  centralized  in  the  hands 
of  the  state  authorities,  but  no  pronounced  tendency  is  apparent 
towards  the  organization  of  consolidated  departments  of  public 
works  with  a  general  jurisdiction  over  works  of  different  kinds. 
In  states  where  so-called  state  departments  of  public  works 
have  been  created,  the  department  generally  has  charge  of  some 
one  public  work,  such  as  a  canal  or  a  system  of  state  roads, 
which  happens  to  be  of  exceptional  importance.  The  actual 
importance  of  the  various  public  works  and  properties  of  the 
states  is  indicated  by  their  estimated  valuations.1  The  ques- 
tions concerning  the  relations  between  state  and  local  authori- 
ties, which  have  played  so  important  a  part  in  the  develop- 
ment of  other  branches  of  state  administration,  here  have 

1  See  post,  p.  309. 


304       STATE  GOVERNMENT  IN  UNITED   STATES 

been  raised  urgently  only  in  connection  with  the  construction 
of  internal  improvements,  especially  those  of  a  local  charac- 
ter, at  state  expense.  The  most  important  division  of  public 
works  administration,  from  this  point  of  view,  is  that  of  the 
highways. 

The  study  of  state  highway  administration  reveals  the  same 
tendencies  as  have  been  observed  in  the  development  of  other 
branches  of  state  administration.  In  the  beginning  the  con- 
struction and  maintenance  of  highways  was  left  entirely  to  the 
local  authorities.  At  present  the  state  governments  are  spend- 
ing large  sums  upon  highway  construction.  Within  the  last 
few  years  several  states,  notably  New  York  and  Ohio,  have 
borrowed  many  millions  in  order  to  execute  comprehensive 
schemes  of  highway  construction.  These  schemes  have  been 
adopted  upon  the  theory  that  the  state  as  a  whole  has  an  in- 
terest in  the  improvement  of  the  main  routes  of  travel.  This 
is  most  clearly  the  case  in  states  like  New  Hampshire,  where 
the  summer  tourist  business  is  a  considerable  source  of  profit, 
and  the  construction  of  good  through  routes  for  automobiles 
has  brought  ever  increasing  returns.  But  the  coming  of  the 
automobile  has  increased  the  radius  of  traffic  everywhere,  and 
correspondingly  increased  the  demand  for  good  roads.  There 
are  three  types  of  state  highway  departments.  First,  there  is 
the  department  which  inspects  local  roads  and  advises  local 
authorities  how  to  improve  them.  Secondly,  there  is  the  de- 
partment which  allocates  state  highway  money  among  local 
authorities  and  supervises  their  use  of  it.  Thirdly,  there  is 
the  department  which  itself  constructs  the  roads.  The  third 
type  is  that  most  generally  favored  wherever  the  state  goes 
into  the  roadbuilding  business  on  any  extensive  scale,  although 
the  problem  of  locating  the  state  roads  causes  many  difficulties 
on  account  of  local  jealousies.  In  addition  to  the  building  of 
roads,  the  state  highway  authorities  often  have  charge  of  the 
examination  and  licensing  of  chauffeurs,  and  regulate  the  use 
of  state  roads  by  the  public.  In  general  the  tendency  is  towards 
the  centralization  of  control  over  local  roads  and  road  construc- 
tion. 


THE   STATE  EXECUTIVES  305 

SUPERVISION  OF   CORPORATIONS 

Business  corporations  were  originally  chartered  by  special 
acts  of  the  state  legislatures.  At  the  Revolution  there  were 
very  few  such  corporations  in  the  United  States,  and  the  method 
of  regulation  by  special  act  seemed  to  afford  adequate  security 
to  the  public  against  the  abuse  of  corporate  privileges  by  their 
promoters  and  proprietors.  The  development  of  industry  in 
the  first  half  of  the  nineteenth  century,  particularly  of  banking, 
insurance,  and  transportation,  greatly  increased  the  demand 
for  corporate  privileges  in  general  and  the  value  of  certain  special 
privileges,  such  as  those  of  issuing  notes  with  a  limited  liability 
for  redemption  and  of  taking  property  by  right  of  eminent 
domain.  Corrupt  means  were  not  infrequently  employed  to 
secure  the  grant  of  such  special  privileges,  and  in  many  corporate 
charters  state  legislatures  failed  to  insert  proper  safeguards  for 
the  interests  of  the  public.  In  1819  the  decision  of  the  United 
States  Supreme  Court  in  the  Dartmouth  College  case  showed 
that  the  states  would  be  unable  to  correct,  without  the  consent 
of  the  promoters  or  proprietors,  the  errors  that  might  appear 
in  badly  drawn  or  corruptly  obtained  charters.  Thereupon 
there  arose  a  widespread  popular  demand  for  stricter  regulation 
of  the  practice  of  incorporation,  and  for  closer  supervision  of  the 
operations  of  corporations.  Most  states  provided  that  charters 
should  not  be  issued  except  under  authority  of  general  laws,  and 
that  corporations  of  certain  kinds  —  principally,  at  first,  banks 
and  insurance  companies  —  should  be  subject  to  continuous 
supervision  by  special  officials.  After  the  Civil  War  the  in- 
creasing dependence  of  the  public  upon  the  railroads,  and,  in 
the  cities,  upon  urban  public  utilities,  created  a  demand  for 
special  regulations  to  secure  adequate  service  at  reasonable 
rates  without  discrimination.  The  right  of  the  state  legislatures 
to  regulate  such  corporations  in  these  respects  was  affirmed  by 
the  United  States  Supreme  Court  in  the  Granger  cases  '  and  has 
been  exercised  in  one  form  or  another  by  practically  all  the 
states.  The  most  recent  development  in  the  regulation  of  cor- 
porations has  been  the  enactment  by  a  number  of  states  of 
so-called  "blue-sky"  laws.  These  laws  are  based  upon  the  as- 

1  See  Munn  v.  Illinois,  94  U.  S.,  113  (1876). 


306       STATE  GOVERNMENT  IN  UNITED  STATES 

sumption,  which  is  amply  justified  by  the  facts,  that  the  regula- 
tion of  the  issue  of  corporation  securities  by  the  states  in  which 
the  corporations  are  created  is  imperfect,  and  that  there  is  need 
for  the  regulation  of  the  sale  of  such  securities  to  investors  in 
other  states.  Consequently  the  vendors  of  corporate  securities 
are  required,  before  making  any  sales  within  the  state,  to  submit 
their  offerings  to  inspection  by  a  special  official  and  procure  a 
license.1  But  no  states  have  yet  dealt  effectively  with  the  issue 
of  securities,  except  in  the  case  of  public  service  corporations. 

The  growing  recognition  of  the  necessity  of  regulating  corpora- 
tions has  been  reflected  in  a  corresponding  growth  of  adminis- 
trative agencies  for  purposes  of  regulation.  The  administration 
of  the  general  laws  regulating  corporations  was  at  first  imposed 
upon  the  secretaries  of  state.  Special  administrative  machinery, 
however,  was  soon  created  for  the  supervision  of  special  classes 
of  corporations.  Commissioners  of  banking  and  of  insurance, 
railroad  and  warehouse  commissions,  special  boards  for  the 
regulation  of  municipal  utilities,  and  general  corporation  commis- 
sions or  commissioners  have  been  created  from  time  to  time  as 
various  needs  were  recognized.  There  has  been  a  constant 
tendency  to  extend  the  powers  of  central  control  over  the  various 
classes  of  corporations.  Commissioners  of  banking  and  in- 
surance at  first  generally  possessed  merely  the  power  to  receive 
reports  and  make  them  public.  Subsequently  they  received 
ever  broadening  powers  to  examine  the  books  and  records  of 
banks  and  insurance  companies,  audit  their  accounts,  require 
the  maintenance  of  certain  reserves,  and  the  investment  of 
funds  in  approved  securities,  and  to  exclude  undesirable  enter- 
prises from  the  further  conduct  of  business  within  the  state. 
Jurisdiction  has  been  frequently  extended  over  private  and 
fraternal  banking  and  insurance  as  well  as  over  ordinary  cor- 
porations. In  a  few  western  states  the  state  authorities  are 
authorized  to  engage  to  a  limited  extent  in  the  business  of 
banking,  for  such  is  the  effect  of  the  bank  deposit  guarantee 
laws  enacted  in  Oklahoma  and  elsewhere.  In  one  state,  Wis- 
consin, the  state  authorities  have  been  authorized  to  engage  in 
the  business  of  life  insurance.  The  tendency  towards  the  in- 

1  The  constitutionality  of  several  of  these  laws  has  been  questioned,  however, 
and  their  ultimate  validity  is  uncertain. 


THE  STATE  EXECUTIVES  307 

crease  of  the  powers  of  corporate  control  has  been  especially 
pronounced  in  the  regulation  of  public  service  corporations. 
The  Massachusetts  Railroad  Commission  of  1869  had  power 
merely  to  investigate,  issue  reports  to  the  public,  and  make 
recommendations  to  the  railroads.  The  Massachusetts  Gas 
and  Electric  Lighting  Commissioners  of  1885  were  authorized 
to  issue  orders  to  the  corporations  under  their  jurisdiction,  to 
forbid  the  construction  of  unnecessary  competitive  plants,  and 
to  regulate  the  creation  of  new  securities  as  well  as  the  rates  and 
conditions  of  service.  The  Wisconsin  Railroad  Commission  of 
1905  was  authorized  not  only  to  exercise  all  the  foregoing  powers, 
but  also  to  appraise  the  physical  property  of  the  railroads  and 
determine  its  true  value.  State  regulation  of  municipally  owned 
public  utilities  has  gone  as  far  as  that  of  privately  owned  utilities. 
The  tendency  to  increase  the  powers  of  the  administrative 
authorities  charged  with  the  supervision  of  corporations  is 
much  more  general  than  the  tendency  to  establish  any  uniform 
type  of  administrative  organization.  The  granting  of  charters 
to  domestic  corporations,  and  the  admission  of  foreign  corpora- 
tions for  the  transaction  of  general  business  within  the  state, 
still  remain  in  most  states  duties  of  the  secretary  of  state. 
The  consolidation  of  jurisdiction  over  all  classes  of  public  serv- 
ice corporations  in  a  single  public  utilities  commission  has  been 
accomplished  in  most  of  the  states,  beginning  hi  Wisconsin  in 
1907.  Massachusetts  at  one  time  had  three  separate  commis- 
sions regulating  the  rates  and  service  of  public  utilities,  and 
still  has  two.  New  York  has  a  separate  commission  with 
jurisdiction  over  utilities  in  the  city  of  New  York.  Most  states 
still  maintain  separate  departments  for  the  supervision  of  banks 
and  insurance  companies.  A  few  states,  however,  notably 
Virginia  and  North  Carolina,  have  consolidated  all  the  offices 
and  boards  having  jurisdiction  over  the  organization  and  activi- 
ties of  business  corporations  into  a  single  state  corporation 
commission.  These  corporation  commissions  act  also  as  state 
boards  of  assessors  for  the  assessment  and  taxation  of  certain 
classes  of  corporations.  In  general,  however,  the  taxation  of 
corporations  is  controlled  by  an  entirely  different  set  of  officials 
from  those  who  supervise  their  operations,  and  in  many  states 
there  may  be  two  wholly  distinct  valuations  placed  upon  the 


308       STATE  GOVERNMENT  IN  UNITED  STATES 

property  and  business  of  corporations,  one  for  the  purpose  of 
regulating  rates  or  other  features  of  their  business,  another  for 
purposes  of  taxation. 

STATE  EXPENDITURES 

The  development  of  the  activities  of  the  state  governments 
has  entailed  a  great  increase  in  state  expenditures.  This  in- 
crease has  been  especially  marked  since  the  beginning  of  the 
present  century.  In  the  ten  years  1903-13  the  expenditures  of 
the  states  more  than  doubled.  In  1913  the  per  capita  expendi- 
tures of  the  states  upon  the  different  branches  of  state  adminis- 
tration were  as  follows : 1 


STATE  GOVERNMENTAL  COST  PAYMENTS  PER  CAPITA,  1913 


1 

M    S 

M 

1 

H 

0 

i 

W  rf 

m 

| 

W  g 

a 

| 

| 

§s 

W 

a 

•5 

S5 

fc 

fl 

S 

t«U 

H 

u 

All  general  departments 

$  3-27 

$5-3° 

$4-12 

$  2.10 

$5-5i 

$1.27 

$2.97 

$5-59 

General   government 

0.42 

0.60 

0.66 

O.22 

0.32 

0.23 

0.32 

0.61 

Protection  to  person 

and  property    .     . 

0.26 

0.60 

0-33 

O.26 

0.62 

0.05 

O.O6 

o-39 

Conservation       of 

health  and  sanita- 

tion    

O.O7 

0.28 

O.O7 

o  04 

o  oo 

O.O2 

o  04 

O.O2 

Highways  .... 

/ 
0.17 

0.24 

*        / 

0.60 

O.O2 

0.09 

O.O2 

Charities,     hospitals, 

and  corrections 

O.9O 

2.51 

1.19 

0.72 

i-59 

0.36 

o-54 

i-34 

Education  .... 

1.38 

0.62 

1.15 

0.82 

2.76 

o-59 

2.OO 

2.84 

Recreation  .... 

O.O2 

0-34 

O.O2 

* 

O.OI 

* 

O.OI 

Miscellaneous  and 

general   .... 

0.05 

O.IO 

0.09 

0.03 

O.O2 

O.O2 

O.O2 

0.36 

Expense  of  public  serv- 

ice enterprises  .     . 

O.O4 

0.15 

0.13 

* 

0.52 

Interest     

o>15 

1.14 

O.  "^7 

O.O2 

O.O2 

0.18 

* 

0.16 

Outlays     

0.50 

2.  ^O 

' 

1-13 

•7 

Total      .... 

$3-95 

$7.02 

$6.93 

$2.21 

$6.66 

$1.46 

$2.97 

$7-98 

*  Less  than  one  half  of  one  cent. 

1  Abstract  of  Special  Bulletins  on  Wealth,  Debt,  and  Taxation,  U.  S.  Bureau  of 
the  Census,  1913.    Table  21,  governmental  cost  payments. 


THE  STATE  EXECUTIVES 


309 


Another  indication  of  the  development  of  the  administrative 
activities  of  the  states  is  afforded  by  the  estimates  of  the  value 
of  the  public  properties  of  the  states.  In  1913  the  value  of 
lands,  buildings,  and  equipment  of  the  general  departments  of 
state  administration  was  estimated  by  the  Federal  Bureau  of 
the  Census  as  follows  : 

1.  Educational  institutions $175,953,734 

2.  State  houses  and  libraries 136,866,051 

3.  General,  insane,  and  contagious  diseases  hospitals 106,197,687 

4.  Penitentiaries  and  correctional  institutions 92,654,114 

5.  Soldiers'  and  orphans'  homes  and  other  charitable  institutions  .  83,302,218 

6.  Armories  and  arsenals 17,688,329 

7.  Fair  grounds,  parks,  and  monuments 12,720,076 

8.  Art  galleries  and  museums 3,462,909 

9.  All  others 12,835,012 


GOVEIZNMENTAL  COST  PAYMENTS  (per  capita)  1913 l 


FEDERAL 
GOVERNMENT 

STATES 

COUNTIES 

INCORPORATED 
PLACES 

TOTAL 

All  general  departments 

6.17 

3-27 

3-24 

14-59 

I9-IS 

General  government   . 

0.64 

0.42 

1.19 

1-5° 

2.82 

Protection    to    person 

and  property 

2-73 

0.26 

0.18 

3.08 

4-59 

Conservation  of  health 

and  sanitation    . 

0.06 

0.07 

0.03 

1.32 

0.78 

Highways      .... 

0.44 

0.17 

0.65 

1.91 

2.08 

Charities,      Hospitals, 

and  corrections  . 

1.88 

0.90 

0.44 

0.72 

3-51 

Education     .... 

0.18 

1.38 

0.67 

5-" 

4-55 

Recreation    .... 

O.OI 

O.O2 

* 

0.47 

0.26 

Miscellaneous    and 

general      .... 

0.24 

O.O5 

0.07 

0.48 

0.58 

Expense  of  public  service 

enterprises     .     .     . 

2.72 

O.O4 

* 

1.41 

3-42 

Interest  

0.26 

O.  I  > 

O.2O 

2.90 

i-95 

Outlays  

0.66 

J 

0.50 

I.O5 

8.40 

6.04 

Total   

9.81 

7.QC 

4..  4.0 

27.29 

3°-S6 

O-V  J 

•f  .Of  y 

*Less  than  one  half  of  one  cent. 

1  About  seven-eighths  of  the  people  of  the  United  States  live  in  localities  where 
they  are  subject  to  separately  organized  county  governments.  Less  than  half 
of  the  people  of  the  United  States  live  in  incorporated  places  with  more  than  2500 
inhabitants,  the  figures  for  which  are  shown  in  the  table. 


310       STATE  GOVERNMENT  IN  UNITED  STATES 

In  addition,  the  total  value  of  lands,  buildings,  and  equipment 
of  public  service  enterprises,  exclusive  of  the  Erie  canal  and 
certain  enterprises  in  Pennsylvania  and  Maryland,  amounted 
to  more  than  fifty  million  dollars  ($52,919,057).  The  total 
value  of  the  public  properties  of  the  states  amounted  therefore 
to  nearly  seven  hundred  million  dollars  ($695,499,187). 

The  relative  importance  of  state  administrative  activities  as 
compared  with  those  of  the  federal  government  and  of  the 
local  governments  in  counties  and  incorporated  places  is  in- 
dicated by  the  comparative  statistics  of  governmental  cost 
payments  per  capita,  to  which  reference  has  already  been 
made.1  The  state  governments  spend  on  general  departmental 
administration  about  the  same  amount  of  money  as  the  coun- 
ties, and  much  less  than  the  federal  and  municipal  governments. 
If  the  outlays  are  included,  the  administrative  activities  of  the 
state  governments  appear  to  be  the  least  important  govern- 
mental administrative  activities  carried  on  in  the  United  States. 

STATE  REVENUES  AND  TAX  ADMINISTRATION 

The  growth  of  state  expenditures  in  recent  years  has  made 
necessary  a  corresponding  increase  in  state  revenues.  At  the 
close  of  the  Revolution  the  principal  sources  of  state  revenue 
were  three  in  number.  First,  there  were  the  customs  duties 
which  each  state  could  impose  upon  imports  or  exports  from  or 
to  other  states  and  foreign  countries.  Secondly,  there  were 
the  excise  duties  which  each  state  could  impose  upon  domestic 
trade  and  industry.  Thirdly,  there  was  the  general  property 
tax  from  which  both  the  "stafe  and  the  local  governments  derived 
a  revenue.  In  some  states  the  poll  tax  also  was  an  important 
source  of  revenue.  The  Federal  Constitution  of  1787  took  away 
the  first  source  of  state  revenue.  The  second  source  was  not 
interfered  with,  but  there  was  a  general  tendency  to  rely  upon 
the  third.  In  the  eighteenth  century  the  general  property  tax 
was  an  excellent  source  of  state  revenue.  Under  the  economic 
and  social  conditions  of  the  period  it  was  fairly  proportional 
to  the  ability  of  the  taxpayer  to  pay,  it  was  clear  and  certain 
in  its  operation,  it  was  easy  to  collect  and  convenient  for  the 

1  See  table  on  p.  309. 


THE  STATE  EXECUTIVES  311 

taxpayer,  the  cost  of  collection  was  low,  the  amount  to  be 
raised  could  be  varied  at  will,  and  the  exact  amount  desired 
could  always  be  obtained.  During  the  course  of  the  nineteenth 
century  the  original  advantages  of  the  general  property  tax 
gradually  diminished.  The  enormous  development  of  intangible 
personal  property,  especially  of  the  securities  and  stocks  of 
business  corporations,  made  evasion  more  easy.  The  un- 
precedented growth  of  the  rate  of  taxation,  especially  for  local 
purposes,  greatly  increased  the  temptation  to  evasion.  By 
the  concealment  of  intangibles,  especially  of  corporate  securities 
and  stocks,  the  undervaluation  of  properties  difficult  to  appraise 
accurately,  and  the  declaration  of  fictitious  debts,  unscrupulous 
men  succeeded  in  evading  more  or  less  completely  their  fair 
share  of  the  general  property  tax.  The  result  was  the  penaliza- 
tion of  honesty,  lack  of  uniformity  in  assessments,  double  taxa- 
tion of  some  properties  as  compared  with  others,  and  the  general 
demoralization  of  the  taxpayer,  particularly  with  respect  to 
the  taxation  of  intangibles. 

This  result  was  even  more  unsatisfactory  from  the  standpoint 
of  the  state  than  from  that  of  the  local  tax  authorities.  Since 
the  local  assessments  served  as  the  basis  for  the  apportionment 
of  the  state  tax  between  the  different  localities  (towns  and  cities 
in  New  England,  counties  elsewhere),  differences  in  the  practice 
of  local  assessors  caused  the  state  tax  to  bear  unequally  upon 
different  localities.  The  first  demand,  therefore,  was  for  the 
equalization  of  assessments  as  between  the  different  localities, 
in  order  that  the  state  tax  might  be  justly  apportioned  through- 
out all  parts  of  the  state.  With  the  continued  increase,  however, 
in  the  tax  rate  and  in  the  amount  of  intangible  personalty  es- 
caping taxation  under  the  general  property  tax,  there  came 
a  demand  for  further  reform.  The  process  of  reform  has 
followed  two  separate  channels :  the  reform  of  the  administra- 
tion of  the  general  property  tax,  and  the  reform  of  the  tax 
itself. 

The  next  step  in  the  reform  of  the  administration  of  the  tax, 
after  making  provision  for  the  equalization  of  assessments 
in  different  localities,  was  to  increase  the  powers  of  the  assessors 
to  prevent  the  evasion  of  the  tax.  A  good  example  of  such  a 
reform  was  the  Ohio  tax  inquisitor  law  of  1885.  Such  laws, 


312       STATE  GOVERNMENT  IN  UNITED  STATES 

however,  failed  to  accomplish  their  purpose.  A  further  step  was 
taken  by  the  enactment  of  the  Ford  franchise  tax  law  in  New 
York  in  1899,  and  by  the  enactment  in  Massachusetts  of  the  law 
for  the  taxation  of  the  corporate  excess.  The  former  provided 
that  the  value  of  the  franchise  of  a  public  service  corporation 
should  be  assessed  and  taxed  as  if  it  were  real  estate.  The 
latter  provided  for  the  assessment  by  central  tax  authorities  of 
all  the  properties  of  business  corporations  of  every  kind  in  excess 
of  the  value  of  real  estate  and  tangible  personalty  assessed 
locally.  The  next  steps  in  the  reform  of  tax  administration 
carried  the  process  of  centralization  further.  Wisconsin  in 
1903  provided  for  the  assessment  of  the  tangible  property  of  all 
steam  railroads  located  within  the  state  by  central  tax  authori- 
ties. The  example  of  Wisconsin  has  been  followed  in  a  number 
of  states.  In  1913  Ohio  provided  for  the  assessment  of  all 
property  by  agents  of  the  central  tax  authorities.  This  was  the 
longest  step  in  the  process  of  centralization  yet  taken,  but  two 
years  later  the  law  was  repealed.1 

The  general  property  tax  itself  was  meanwhile  being  subjected 
to  a  process  of  reform.  Two  leading  principles  seem  to  underlie 
recent  attempts  to  reform  the  general  property  tax  as  a  source 
of  state  revenue.  The  first  is  the  classification  of  property  for 
purposes  of  taxation.  The  second  is  the  separation  of  the 
sources  of  state  and  local  revenues.  The  development  of  the 
first  principle  may  be  conveniently  traced  in  the  legislation  of 
New  York.  It  began  in  1906  with  the  exemption  of  mortgages 
from  the  general  property  tax.  In  1910  the  bonds  of  business 
corporations  generally  were  exempted.  In  the  following  year 
the  exemption  was  extended  to  secured  debts  of  all  kinds.  In 
1915  the  constitutional  convention  proposed  a  change  in  the 
constitution  which  would  have  permitted  the  development  of 
this  principle  to  its  logical  conclusion.2  The  legislature  was  to 
have  power  to  classify  property  for  purposes  of  taxation  and 
to  provide  for  the  assessment  of  all  personalty  under  the  direc- 
tion of  the  state  tax  authorities.  Proposals  to  authorize  the 

1  See  O.  C.  Lockhart,  Recent  Developments  in  Taxation  in   Ohio,   Quarterly 
Journal  of  Economics,  vol.  29,  pp.  480-521,  and  The  American  Year  Book  for 
iQiS,  PP-  358-359- 

2  Article  x,  in  which  these  changes  were  proposed,  was  submitted  separately  to 
the  people,  and  rejected  by  them. 


THE  STATE  EXECUTIVES  313 

classification  of  property  for  purposes  of  taxation  have  been 
submitted  to  the  people  in  several  states  in  recent  years  and 
adopted  in  a  few  of  them.  In  several  states  also  special  pro- 
vision has  been  made  for  the  taxation  of  certain  kinds  of  real 
property,  such  as  urban  building  sites  and  forest  lands,  at 
different  rates  or  upon  different  principles  than  property  in 
general. 

The  separation  of  the  sources  of  state  and  local  revenues 
is  being  brought  about  chiefly  in  two  ways.  First,  property 
exempted  from  the  operation  of  the  general  property  tax  is  being 
subjected  to  separate  taxation  under  special  laws.  An  example 
of  this  is  the  so-called  flat  or  low-rate  tax  law  for  the  taxation 
of  intangibles,  which  imposes  a  rate  of  usually  three  or  four 
mills  per  annum  upon  the  value  of  such  property.  The  state 
supervises  the  collection  of  this  flat  or  low-rate  tax,  surrendering 
to  the  local  authorities  as  a  rule  the  major  portion  of  the 
proceeds.  Such  laws  have  been  adopted  in  several  states. 
Secondly,  the  states  are  developing  new  sources  of  revenue 
from  new  kinds  of  taxes.  One  example  of  this  is  the  levying 
of  special  franchise  or  business  taxes  on  railroads  and  other 
public  service  corporations,  as  is  the  practice  in  many  states, 
or  upon  all  business  corporations,  as  is  the  practice  in  a  few. 
These  taxes  may  be  assessed  upon  some  external  indicia  of 
ability  to  pay,  such  as  capitalization,  or  miles  of  track  or  wire, 
or  number  of  messages  transmitted,  or  upon  gross  earnings,  or 
upon  net  earnings.  In  the  latter  case  the  tax  approximates  a 
limited  income  tax.  A  very  few  states,  notably  Wisconsin,  have 
carried  this  idea  to  its  logical  conclusion  and  established  a  state 
tax  on  all  incomes.1  The  proceeds  of  these  income  taxes,  though 
assessed  and  collected  under  the  direction  of  the  central  tax 
authorities,  go  for  the  most  part  to  the  localities.  A  much 
larger  number  of  states  have  introduced  the  inheritance  tax  as 
a  source  of  state  revenue.2  The  general  property  tax  still 

'The  Massachusetts  income  tax  law  of  1916  applies  only  to  so-called  earned 
incomes  and  to  incomes  from  certain  classes  of  intangibles. 

1  See  U.  S.  Bureau  of  the  Census,  Special  Bulletin  on  Taxation  and  Revenue 
Systems  of  State  and  Local  Gowrnmfnts,  1913.  This  bulletin  contains  a  digest  of 
constitutional  and  statutory  provisions  relating  to  taxation  in  all  the  states  at  the 
close  of  1912.  For  information  on  subsequent  developments  in  state  taxation,  as 
on  so  many  other  matters  relating  to  state  government,  see  The  American  Year  Book. 


3H       STATE  GOVERNMENT  IN  UNITED  STATES 


remains,  however,  the  principal  source  of  income  for  the  state 
as  well  as  the  local  governments.1 

The  progress  of  reform  in  the  revenue  systems  of  the  states 
has  been  marked  by  a  corresponding  development  of  central 
administrative  agencies.  Both  the  reform  of  the  administration 
of  the  general  property  tax  and  the  reform  of  the  tax  itself  have 
made  necessary  the  creation  of  special  state  tax  authorities  and 
the  constant  enlargement  of  their  powers.  First,  the  attempt 
to  equalize  local  assessments  compelled  the  creation  of  state 
boards  of  equalization.  This  development  began  in  Ohio  in 
i825-2  Next,  the  assessment  of  property  directly  by  the  state 
governments  brought  about  the  creation  of  such  offices  as  those 

1  This  is  clearly  indicated  by  the  following  table  in  which  the  per  capita  yield  of 
the  different  sources  of  public  revenue  is  shown  for  the  year  1913  : 

REVENUE  RECEIPTS 


PEE  CAPITA 

States 

Counties 

Incorporated 
Places 

Total 

General  property  taxes       .... 
Special  property  taxes  

$1-44 
0.70 
0.03 

0.07 
°-55 

0.21 
O.OQ 
O.O7 
O.OI 

0.22 

0.03 

* 

0-34 
0.02 

$3-29 
O.OI 

0.07 

O.II 

* 

0.08 

O.O2 
O.O2 

0.04 

* 

0.06 

0.28 

* 

0.38 
* 

$14.47 

0-34 
0.08 

2.13 
0.07 
1.14 
0.27 

O.IO 

0-15 
0.30 
0.78 
1-13 

O.II 

0-57 
2.63 

$11.15 
0.86 
0.13 

1.17 

0-59 
0.82 
0.23 
0.13 

O.I2 
O.I4 
0.64 

0.81 
0.06 

0.90 
1.26 

Poll  taxes  

Special  assessments  and  charges  for 
outlays  

Business  taxes     

Liquor  licenses  and  other  imposts    . 
Other  business  licenses       .... 
Non-business  license  taxes 
Fines,  forfeits,  and  escheats    .     .     . 
Highway  privileges  

Interest  and  rents    

Subventions  and  grants     .... 
Donations  and  gifts      

Earnings  of  general  departments  and 
miscellaneous  

Earnings  of  public  service  enterprises 
Total       

$3-80 

$4-32 

$24.26 

$19.00 

*Less  than  one  half  of  one  cent. 

1  In  New  England  the  practice  of  equalizing  local  assessments  by  legislative  com- 
mittees had  been  established  much  earlier,  in  Massachusetts,  as  early  as  1694.  See 
E.  E.  Agger,  The  Budget  Right  in  American  Commonwealths  (Columbia  University 
Studies  in  History,  Economics,  and  Public  Law,  xxv,  2,  1907). 


THE  STATE  EXECUTIVES  315 

of  tax  and  corporation  commissioner  or  of  state  boards  of  as- 
sessors, or  the  enlargement  of  the  powers  of  the  state  boards  of 
equalization.  State  excise  taxes  and  license  fees  were  origi- 
nally levied  and  collected  by  the  state  treasurers.  In  the  nine- 
teenth century  the  states  began  to  employ  license  fees  more 
and  more  as  a  means  of  regulating  social  and  industrial  conditions. 
State  legislation  for  the  control  of  the  liquor  traffic,  for  example, 
incidentally  opened  up  a  new  source  of  revenue,  which  in  a  few 
states  has  been  seized  by  the  state  governments.  The  general 
practice  has  been  to  relieve  the  state  treasurers  from  responsibility 
for  the  enforcement  of  such  laws  by  the  creation  of  special 
excise  commissions  or  commissioners.  Moreover,  such  state 
offices  as  those  for  the  supervision  of  banks  and  insurance  com- 
panies and  other  corporations  are  in  some  states  supported 
entirely  by  fees,  paid  directly  to  the  heads  of  those  offices.  Thus 
the  state  revenues  may  be  collected  by  a  number  of  separate 
state  officials.  Recently  a  tendency  has  appeared  towards  the 
consolidation  of  various  authorities  concerned  with  the  collec- 
tion of  the  state  revenues.  The  first  step  in  the  process  of 
consolidation  has  usually  been  the  merging  of  separate  state 
boards  of  equalization  and  of  assessors  into  so-called  state  tax 
commissions.  Beginning  in  Michigan  and  Wisconsin  in  1899, 
state  tax  commissions  have  been  established  in  more  than  half 
the  states,  with  constantly  increasing  powers  for  the  assessment 
of  property  for  purposes  of  taxation,  both  local  and  state,  and 
for  the  collection  of  state  corporation,  business,  inheritance,  and 
income  taxes,  and  other  revenues. 

THE  ORIGINAL  EXECUTIVE  OFFICES 

The  increase  in  the  activities  of  the  states  since  the  democrati- 
zation of  the  state  governments  has  brought  about  on  the  whole 
relatively  little  change  in  the  organization  and  powers  of  the 
original  executive  offices. 

The  attorney-general  is  the  most  important  of  the  original 
executive  officers,  so  far  as  the  general  conduct  of  administration 
is  concerned.  He  is  not  only  the  principal  prosecuting  officer 
of  the  state,  but  also  the  legal  adviser  of  the  governor  and  de- 
partment heads.  In  most  states  his  powers  as  public  prosecutor 


316       STATE  GOVERNMENT  IN  UNITED  STATES 

are  still  seriously  curtailed  by  the  powers  granted  to  the  county 
or  other  local  prosecutors  in  their  respective  districts.  His 
powers  as  legal  adviser  are  more  important  on  account  of  the 
volume  and  character  of  state  legislation.  The  opinions  of 
the  attorney-general  are  relied  on  by  the  department  heads  for 
guidance  through  the  intricacies  of  the  statute  books.  Where 
the  conduct  of  administration  is  prescribed  by  law  with  infinite 
and  not  always  intelligible  detail,  as  is  the  practice  in  most 
states,  the  department  heads  are  necessarily  more  dependent 
upon  the  opinions  of  the  attorney-general  than  upon  those  of 
the  governor  himself. 

The  secretary  of  state  originally  performed  duties  now  in 
most  states  divided  between  the  governor's  private  secretary 
and  the  clerks  of  the  legislative  houses.  He  is  now  charged 
with  a  great  variety  of  duties,  mostly  of  a  perfunctory  sort, 
relating  to  the  conduct  of  elections,  the  state  printing,  the  dis- 
tribution of  public  documents,  the  supervision  of  corporations, 
the  custody  of  public  records,  etc.  Unlike  the  office  of  attorney- 
general,  this  office  requires  little  or  no  exercise  of  discretionary 
authority  on  the  part  of  its  incumbent. 

The  state  treasurer  receives  the  public  revenues  from  the 
various  collecting  authorities,  pays  the  bills  of  the  state,  super- 
vises the  issue  of  bonds  when  it  is  necessary  to  borrow,  and 
has  custody  of  the  public  funds.  In  most  states  the  funds  are 
deposited  in  one  or  more  banks  or  other  depositories  selected  in 
accordance  with  law.  In  a  few  the  traditional  Democratic 
system  of  an  independent  treasury  is  still  preserved.1 

The  accounts  of  the  state  treasurers  were  formerly  audited 
by  legislative  committees.  With  the  growth  of  state  revenues 
and  expenditures  in  the  nineteenth  century,  and  the  general 
adoption  of  biennial  sessions  of  the  legislature,  the  necessity 
arose  for  continuous  supervision  of  state  finances  by  a  special 
permanent  official.  The  office  of  state  auditor  or  comptroller 
was  therefore  created.  With  the  general  adoption  also  of  direct 
popular  elections  of  state  administrative  officers,  including  both 
state  treasurers  and  auditors  or  comptrollers,  the  existing  system 
of  independent  audit  came  into  operation.  The  powers  and 

1  See  E.  E.  Agger,  The  Budget  Right  in  the  American  Commonwealths,  ch.  iv, 
pt.  iii. 


THE  STATE  EXECUTIVES  317 

duties  of  the  auditing  officer  vary  greatly  in  different  states. 
In  general,  the  state  treasurer  may  not  pay  any  bill  or  claim 
against  the  state  without  the  previous  approval  of  the  auditor. 
The  auditor  is  required  to  examine  the  treasurer's  accounts 
once  a  year  or  oftener  and  to  report  periodically  to  the  legis- 
lature. In  a  few  states  the  auditor's  accounts  in  turn  are  audited 
by  legislative  committees,  and  everywhere  the  legislature  may 
investigate  the  accounts  of  the  state  at  any  time.  There  is  a 
tendency  also  to  give  the  auditor  power  both  to  supervise  the 
accounts  of  state  institutions  and  to  prescribe  uniform  systems 
of  accounting.  In  some  states,  however,  as  already  indicated, 
special  officials  have  been  appointed  to  supervise  the  accounts 
of  certain  state  institutions,  and  in  a  few  states  central  boards 
of  control  supervise  or  administer  the  finances  of  all  state  in- 
stitutions. It  might  be  supposed  that  the  auditor  would  be 
able  to  do  much  towards  checking  extravagance  and  corruption, 
but  this  is  not  the  case.  In  many  states  the  power  of  the  auditor 
to  check  extravagance  and  corruption  is  seriously  impaired  by 
the  legislative  practice  of  hearing  and  deciding  claims  without 
previous  determination  by  any  administrative  officer  or  court 
and  of  granting  special  financial  relief  to  individuals  by  private 
bills.  In  most  of  them  it  extends  no  further  than  to  see  that 
no  money  is  paid  out  of  the  state  treasury  without  authority  of 
law.  In  short,  the  auditor  is  an  accountant,  and  not  in  general 
an  instrument  of  economy  and  efficiency. 

PRESENT    DISORGANIZATION    OF    STATE    ADMINISTRATION 

By  the  middle  of  the  nineteenth  century,  as  has  been  previously 
shown,  the  governor  had  practically  ceased  to  be  the  chief  execu- 
tive in  the  governments  of  the  states.  The  process  of  decentral- 
izing and  disintegrating  state  administration  had  gone  as  far 
as  it  could.  The  reconstruction  of  state  administration,  which 
had  already  begun  and  has  since  proceeded  with  ever  quickening 
pace,  has  now  greatly  increased  the  number  of  state  adminis- 
trative agencies.  It  has  bestowed  upon  the  central  authorities 
ever-growing  powers  of  direct  administrative  action  and  of 
control  over  the  activities  of  the  local  authorities  in  county, 
town,  village,  and  city.  In  short,  the  process  of  reconstruction 


3i8       STATE  GOVERNMENT  IN  UNITED  STATES 

of  state  administration  has  been  a  process  of  centralization. 
But  it  has  not  been  to  a  similar  extent  a  process  of  integration. 
In  most  states  there  are  a  number  of  separate  administrative 
agencies  performing  the  duties  imposed  upon  each  of  the  prin- 
cipal departments:  education,  correction,  charity,  health, 
conservation  of  resources  both  human  and  natural,  public 
works,  finances,  etc.  The  division  of  authority  between  these 
separate  agencies  varies  greatly  in  different  states,  and  is  often 
arbitrary  and  unserviceable.  A  tendency  to  integrate  the 
organization  of  the  central  authorities  in  the  principal  depart- 
ments of  state  administration  is  unmistakable,  but  in  most 
states  on  the  whole  it  has  not  yet  gone  far.  A  tendency  to 
integrate  the  departments  themselves  into  one  coherent  whole 
is  barely  discernible,  but  has  made  no  headway.  The  governor 
to-day,  as  in  the  middle  of  the  nineteenth  century,  has  no  place 
in  the  regular  conduct  of  state  administration,  except  that 
which  results  from  his  power  of  appointment.  In  the  middle 
of  the  nineteenth  century  the  power  of  appointment  was  of 
little  consequence  because  there  were  in  most  states  no  offices 
of  importance  not  filled  by  election,  either  by  the  legislatures  or 
by  the  people.  To-day  many  important  administrative  offices 
are  filled  by  appointment  of  the  governor,  but  the  increase  in 
the  number  of  appointive  offices  has  not  brought  a  correspond- 
ing increase  in  the  administrative  importance  of  the  governor. 

The  governor's  power  of  appointment  and  removal  has  not 
been  made  commensurate  with  his  nominal  responsibility  for 
the  conduct  of  state  administration.  In  New  York,1  in  addi- 
tion to  popular  election,  there  are  at  least  sixteen  different  ways 
of  appointing  the  heads  of  state  departments,  bureau  chiefs, 
and  other  principal  officeholders  and  members  of  commissions. 
Of  those  appointed  directly  by  the  governor,  some  are  appointed 
by  him  alone,  others  only  with  the  advice  and  consent  of  the 
senate.  Of  the  department  heads  and  major  officials  holding 
office  in  1915,  just  about  one-half  were  appointed  by  the  governor 
with  the  advice  and  consent  of  the  senate.  Only  five  department 
heads,  beside  the  governor,  were  elected  by  the  people.  In 
most  states  a  much  larger  proportion  of  the  total  number  of 

1  See  Bureau  of  Municipal  Research,  The  Constitution  and  Government  of  the  State 
of  New  York,  charts  i,  ii,  iii,  and  iv. 


THE  STATE  EXECUTIVES  319 

department  heads  are  elected  by  the  people.  In  New  Jersey 
alone  is  the  governor  the  only  executive  officer  elected  by  the 
people.  The  tenure  of  office  of  department  heads  is  almost  as 
various  as  the  manner  of  appointment.  In  New  York,  some 
officials  hold  office  for  a  fixed  term  coinciding  with  that  of  the 
governor,  a  larger  number  for  a  fixed  term  not  coinciding  with 
that  of  the  governor,  and  in  many  cases  exceeding  that  of  the 
governor  hi  length.  All  of  these  officials  may  be  removed  by 
impeachment,  and  some  in  no  other  way.  Some  may  be  re- 
moved by  the  governor  at  will,  others  upon  the  preferment  of 
charges  deemed  by  the  governor  sufficient  to  justify  removal, 
others  only  after  a  public  hearing  upon  such  charges,  others 
only  upon  recommendation  by  the  senate,  others  by  some  other 
method  not  subject  to  the  control  of  the  governor.  Altogether 
there  are  at  least  seven  different  methods,  besides  impeach- 
ment, of  removing  department  heads  and  other  principal  offi- 
cials. Less  than  half  of  the  total  number  may  be  removed  by 
the  governor  upon  his  own  individual  responsibility.  In  other 
states  the  situation  is  much  the  same.  Despite  the  reconstruc- 
tion of  state  administration  in  response  to  the  increase  in  the 
functions  of  the  state  governments,  the  governor  remains  chief 
executive  in  name  only.  The  actual  chief  executives  are  the 
multitude  of  department  heads,  bureau  chiefs,  and  other  prin- 
cipal officeholders,  and  members  of  boards  and  commissions. 

TYPES  OF  DEPARTMENTAL  ORGANIZATION 

At  present  there  are  three  principal  types  of  departmental 
organization  in  which  the  department  head  is  elected  by  the 
people,  and  five  principal  types  in  which  the  department  head 
is  selected  in  some  other  way.  The  three  types  of  departmental 
organization  with  popularly  elected  head  are  the  following : 
(i)  a  single-headed  department;  (2)  a  multi-headed  depart- 
ment, the  members  being  elected  in  the  state  at  large  by  all  the 
voters;  (3)  a  multi-headed  department,  the  members  being 
elected  by  districts.  The  first  type  is  the  most  common.  The 
second  type  is  best  illustrated  by  the  boards  of  regents  of  the 
state  universities  in  certain  states;  the  third,  by  several  rail- 
road commissions  and  state  boards  of  equalization.  The  third 


320        STATE  GOVERNMENT  IN  UNITED  STATES 

type  has  proved  very  unsatisfactory  in  a  number  of  cases, 
partly  because  of  the  tendency  of  the  members  of  such  boards 
and  commissions  to  place  the  local  interests  of  their  respective 
districts  above  the  general  interests  of  the  whole  state.  The 
second  type  has  in  most  cases  proved  less  unsatisfactory,  partly, 
it  may  be  suspected,  because  few  states  have  entrusted  much 
power  to  such  bodies.  The  first  type  has  proved  least  unsatis- 
factory. Under  the  system  of  making  nominations  for  elective 
office  by  delegate  conventions,  the  nominations  for  such  places 
as  commissioner  of  agriculture  or  labor,  where  elective,  were 
commonly  awarded  by  the  managers  of  the  major  parties  to 
candidates  known  to  be  acceptable  to  the  fanners  or  to  organized 
labor,  as  the  case  might  be,  and  the  nominees  were  commonly 
supported  by  all  partisans  without  question.  Under  the  direct 
primary  system  the  distribution  of  the  nominations  in  a  manner 
generally  acceptable  to  the  interests  most  concerned  is  less 
certain.  The  results,  particularly  in  states  where  extensive 
powers  have  been  conferred  on  the  elective  officials,  have  been 
less  satisfactory.  In  general,  with  the  exception  of  the  attor- 
ney-general, the  more  important  administrative  offices  are  those 
of  comparatively  recent  creation  and  are  not  filled  by  popular 
election.  The  question  of  popular  election  would  be  compara- 
tively unimportant,  if  it  were  not  for  the  fact  that  some 
of  these  offices  control  the  distribution  of  a  good  deal  of 
patronage. 

The  unsystematic  character  of  state  administrative  organiza- 
tion is  clearly  revealed  by  the  illogical  application  of  the  principle 
of  popular  election  to  the  choice  of  administrative  officials. 
Almost  everywhere  attorneys-general,  secretaries  of  state,  treas- 
urers, and  auditors  are  elected  by  popular  vote.  Yet  some  of 
these  are  administrative  officers  with  important  discretionary 
powers,  whilst  others  have  purely  perfunctory  powers  involving 
no  exercise  of  discretion.  In  all  states  there  are  officers  who 
exercise  more  important  powers  than,  for  example,  the  secre- 
tary of  state,  who  are  not  elected  by  the  people.  In  most 
states,  too,  some  officers  are  elected  by  the  people  who  in  other 
states  are  chosen  in  some  other  way.  Why  should  the  members 
of  the  state  board  of  equalization  be  elected  by  the  people  in 
Illinois,  for  example,  although  the  members  of  the  far  more 


THE  STATE  EXECUTIVES  321 

important  tax  commission  are  not  so  elected  in  the  neighboring 
state  of  Wisconsin?  Why  should  the  members  of  a  state  rail- 
road and  warehouse  commission  be  elected  by  the  people,  when 
the  far  more  important  public  utilities  commissioners  are  not 
so  elected?  Why  should  superintendents  of  public  instruction 
be  elected  by  the  people  in  many  states,  whilst  the  far  more 
important  commissioners  of  education  in  other  states  are  not 
so  elected?  If  commissioners  of  agriculture  and  dairy  com- 
missioners are  to  be  popularly  elected,  as  is  the  practice  in 
many  states,  why  should  not  commissioners  of  public  health 
and  workmen's  compensation  commissioners  be  similarly  elected, 
as  is  the  practice  in  no  states  ?  If  the  principle  of  popular  elec- 
tion be  sound,  why  so  many  exceptions?  If  unsound,  why 
should  it  not  be  abandoned? 

The  principal  types  of  departmental  organization,  where 
the  head  is  not  elected  by  the  people,  are  the  following :  (i)  the 
department  with  a  single  head  appointed  by  the  governor, 
usually  with  the  consent  of  the  senate;  (2)  the  department 
with  a  single  head  appointed  not  by  the  governor  but  by  a  sepa- 
rate board  or  commission,  usually  unpaid,  which  exercises,  how- 
ever, only  advisory  powers  in  addition  to  the  power  of  appoint- 
ment ;  (3)  the  department  with  a  multiple  head,  consisting  of  a 
board  or  commission,  usually  unpaid,  which  exercises  its  powers 
mainly  through  the  instrumentality  of  a  paid  expert  secretary ; 
(4)  the  department  with  a  multiple  head,  consisting  of  a  board 
or  commission,  usually  paid,  which  exercises  its  powers  directly 
through  its  own  members ;  and  (5)  the  department  with  a  single 
head  appointed  by  the  governor,  with  or  without  the  consent 
of  the  senate,  but  dependent  upon  the  advice  of  an  advisory 
council  for  the  exercise  of  certain  of  his  powers.  The  first  type 
is  found  in  all  the  states  and  is  commonly  employed  where  the 
duties  of  the  department  are  largely  of  a  ministerial  character, 
not  involving  the  exercise  of  much  discretionary  authority. 
Such,  for  example,  is  the  type  of  organization  generally  adopted 
for  departments  of  banking  and  insurance. 

The  second  type  of  departmental  organization  is  compara- 
tively rare.  It  is  employed  most  frequently  for  the  organization 
of  state  departments  of  education.  The  best  illustration  of 
this  type  is  the  department  of  education  of  the  state  of  New 


322       STATE  GOVERNMENT  IN  UNITED  STATES 

York.  In  that  state  the  legislature  chooses  each  year  one 
member  of  the  state  board  of  regents  for  a  term  of  twelve  years. 
The  compensation  is  nominal,  and  the  powers  of  the  board  are 
practically  limited  to  the  choice  of  a  commissioner  of  education. 
This  officer  is  well  paid,  and  serves  during  the  pleasure  of  the 
board  as  the  active  head  of  the  public  school  system  of  the  state. 
The  manner  of  appointing  the  regents  protects  them  against 
ordinary  political  influences,  since  it  would  require  seven  years 
to  change  a  majority  of  the  board,  and  thus  enables  them  to 
choose  the  commissioner  of  education  solely  with  a  view  to  his 
professional  attainments  and  administrative  skill.  Such  a 
system  has  the  advantage  of  taking  the  management  of  the 
schools  as  completely  "out  of  politics"  as  is  possible.  In  most 
states  where  a  similar  type  of  organization  has  been  adopted 
for  the  department  of  education,  the  members  of  the  board 
which  selects  the  commissioner  are  appointed  by  the  governor 
for  comparatively  long  terms,  and  as  the  terms  are  ordinarily 
so  arranged  that  not  more  than  one  expires  in  any  one  year, 
the  independence  of  the  educational  department  is  well  safe- 
guarded. Where  it  is  highly  important,  as  in  the  management 
of  the  public  schools,  to  reduce  ordinary  political  influences  to 
a  minimum,  this  type  of  organization  has  heretofore  possessed 
distinct  advantages  over  the  first. 

The  third  type  of  departmental  organization  closely  resembles 
the  second.  In  this  type,  there  is  both  an  unpaid  board  and  a 
well-paid  expert  official  at  the  head  of  the  department,  but  the 
division  of  authority  between  them  is  different  from  that  exist- 
ing in  the  second  type.  The  unpaid  board  not  only  chooses 
the  paid  expert,  but  actively  directs  the  administration  of  the 
department.  The  paid  expert  is  nominally  the  agent  of  the 
board,  and  the  latter  is  the  principal  in  the  conduct  of  affairs. 
Actually  the  relations  between  principal  and  agent  will  be 
largely  determined  by  the  character  of  the  men  themselves. 
An  active  and  capable  secretary  of  such  a  board  will  often 
exercise  as  much  real  influence  as  the  commissioner  in  the  second 
type  of  organization.  Active  and  capable  members  of  boards, 
however,  may  exercise  much  more  influence  than  in  the  second 
type.  The  system  has  the  advantage  of  combining  the  en- 
thusiasm and  personal  enterprise  of  intelligent  amateurs  with 


THE  STATE  EXECUTIVES  323 

the  experience  and  skill  of  the  professional  administrator.  Under 
the  most  favorable  conditions  it  brings  together  in  one  har- 
monious organization  the  public-spirited  citizen  and  the  bureau- 
crat. It  is  a  more  economical  type  of  organization  than  the 
second  or  fourth  types,  and  seems  particularly  well  adapted  for 
the  conduct  of  pioneer  work  in  new  fields  of  administration. 
It  was  a  type  frequently  adopted  when  the  state  governments 
first  turned  their  attention  to  educational,  agricultural,  chari- 
table, and  public  health  administration.  It  has  been  more 
generally  employed  in  some  parts  of  the  country,  notably  in 
New  England,  than  in  others.  Under  this  type  of  depart- 
mental organization,  for  example,  Horace  Mann  developed 
the  work  of  the  Massachusetts  state  board  of  education,  and 
F.  B.  Sanborn  that  of  the  board  of  charity. 

The  fourth  type  of  departmental  organization  is  most  com- 
monly employed  in  those  branches  of  administration  which 
combine  administrative  and  quasi-legislative  powers.  The 
members  of  this  type  of  administrative  board  or  commission, 
unlike  those  of  a  board  of  the  third  type,  are  expected  to  devote 
most  or  all  of  their  time  to  the  duties  of  the  office,  and  receive 
suitable  compensation.  Their  secretary  is  distinctly  a  subor- 
dinate, and,  unlike  the  secretary  of  a  board  of  the  third  type, 
receives  a  smaller  salary  than  his  chiefs.  The  power  and  re- 
sponsibility are  combined  in  the  hands  of  the  board  or  commis- 
sion itself.  The  earliest  examples  of  this  type  were  the  boards 
of  equalization  created  in  several  states  prior  to  the  Civil  War. 
Most  of  the  early  boards  of  equalization,  however,  consisted  of 
other  state  officials,  ex  officio,  or  were  elected  by  the  people. 
After  the  Civil  War  this  type  of  organization  was  adopted  for 
the  railroad  and  warehouse  commissions  of  the  Granger  period, 
and  is  now  employed  for  all  public  service  commissions  except 
those  which  are  popularly  elected.  Recently  it  has  been  ap- 
plied to  several  other  branches  of  state  administration,  notably 
the  administration  of  health  and  labor  laws.  Modern  health 
and  labor  laws  contain  numerous  provisions  to  the  effect  that 
the  conditions  of  employment  shall  be  reasonably  safe  and  whole- 
some, that  employees  shall  be  adequately  protected  against  the 
danger  of  industrial  accident  and  disease,  or  that  due  care  be 
taken  to  preserve  the  health  and  safety  of  industrial  wage 


324       STATE  GOVERNMENT  IN  UNITED  STATES 

earners.  The  enforcement  of  laws  couched  in  such  general 
terms  was  found  to  be  exceedingly  difficult,  unless  the  generali- 
ties of  the  law  were  translated  into  specific  instructions  for  the 
guidance  of  industrial  inspectors.  The  legislatures  were  unable 
to  do  this  work  themselves,  for  it  required  more  time  and  more 
specialized  skill  than  they  commonly  possessed.  The  practice 
of  leaving  to  the  courts  the  interpretation  of  such  general  pro- 
visions in  particular  cases  as  they  arose  was  slow,  vexatious,  and 
inadequate.  The  need  arose  for  the  determination  in  advance 
of  fixed  and  definite  sanitary  and  industrial  rules  which  should 
serve  as  guides  both  to  the  official  inspectors  and  to  the  public. 
The  power  to  adopt  such  rules,  like  the  power  to  regulate  the 
rates  of  public  utilities,  seemed  too  broad  to  confide  in  a  single 
administrative  official.  In  1911  Wisconsin,  which  had  led  the 
way  in  the  creation  of  modern  tax  and  public  utility  commis- 
sions, established  a  state  industrial  commission  with  a  compre- 
hensive jurisdiction  over  the  enforcement  of  labor  legislation 
of  all  kinds.  This  method  of  dealing  with  such  matters  came 
to  be  known  as  the  Wisconsin  idea,  and  has  been  copied  in  most 
of  the  states,  particularly  in  the  middle  and  far  West,  where 
there  has  been  much  legislation  in  recent  years  relating  to  social 
and  industrial  welfare.  Several  of  these  commissions,  in  fact, 
notably  in  the  Pacific  coast  states,  have  been  named  industrial 
welfare  commissions,  and  have  received  very  broad  powers  for 
the  regulation  of  hours  of  labor,  rates  of  wages,  and  other  social 
and  industrial  conditions. 

The  fifth  type  of  departmental  organization  resembles  that 
originally  adopted  for  the  organization  of  the  executive  depart- 
ment. After  the  abolition  of  the  original  governor's  councils, 
except  in  three  of  the  New  England  states,  this  type  of  organiza- 
tion fell  into  disuse.  It  has  been  recently  revived  and  adopted 
for  departments  which  exercise  both  ordinary  administrative 
and  extraordinary  quasi-legislative  powers.  The  first  instance 
of  its  renewed  use  seems  to  have  been  in  the  Massachusetts 
department  of  boiler  inspection,  organized  in  1907.  The  chief 
boiler  inspector  was  charged  with  the  duty  of  seeing  that  steam 
boilers  were  reasonably  safe.  The  legislature  was  unable  to 
define  by  law  with  sufficient  accuracy  the  tests  of  safety  to  be 
applied  to  all  kinds  of  boilers  under  all  sorts  of  conditions.  Con- 


THE  STATE  EXECUTIVES  325 

sequently  it  provided  for  the  creation  of  a  board  of  boiler  rules, 
which  was  charged  with  the  duty  of  preparing  standard  speci- 
fications, for  the  testing  and  licensing  of  steam  boilers.  This 
board  was  composed  of  four  persons,  one  representative  of  boiler 
manufacturers,  one  representative  of  boiler  users,  one  represen- 
tative of  stationary  engineers  and  firemen,  and  one  representative 
of  boiler  insurance  companies,  together  with  the  chief  boiler 
inspector,  who  acted  as  chairman.  Since  that  time  this  type 
of  departmental  organization  has  been  adopted  in  other  cases 
where  wide  discretionary  powers  were  delegated  to  adminis- 
trative officials,  notably  in  the  organization  of  the  New  York 
and  Massachusetts  departments  of  health  in  1913  and  1914, 
respectively,  and  in  the  organization  of  the  New  York  and 
Pennsylvania  departments  of  labor  in  I9I3-1  In  all  these 
cases  a  single  commissioner  appointed  by  the  governor  is  charged 
with  the  enforcement  of  the  laws  relating  to  health  or  labor 
conditions,  as  the  case  may  be,  together  with  the  enforcement 
of  the  codes  elaborated  by  the  advisory  board  or  council.  These 
councils  are  composed  of  four  or  six  representatives  of  the  various 
interests  most  directly  concerned  in  the  work  of  the  depart- 
ments, appointed  by  the  governor,  together  with  the  commis- 
sioner. They  exercise  quasi-legislative  but  no  purely  adminis- 
trative powers.  The  commissioner  is  paid  a  suitable  salary, 
and  the  members  of  the  council  are  paid  a  smaller  sum,  propor- 
tioned to  the  work  they  do.  Under  this  fifth  type  of  organiza- 
tion there  is  a  more  logical  application  than  under  the  fourth 
type  of  the  old  maxim,  Many  heads  for  counsel,  one  for  action. 
It  is  possible  to  make  the  advisory  councils  more  representative 
of  the  different  interests  concerned  than  the  administrative 
commissions  can  ordinarily  be,  without  sacrificing  administrative 
efficiency  on  the  part  of  the  commissioners  for  the  sake  of  secur- 
ing their  representative  character.  It  is  also  possible  to  hold 
the  single  administrative  head  more  strictly  responsible  for  the 
good  conduct  of  administration  than  can  be  done  where  there 
are  three  or  more  commissioners  of  equal  authority. 

1  The  New  York  department  of  labor  was  reorganized  in  1915,  and  a  modified 
form  of  the  fourth  type  of  organization  was  adopted.  See  Commons  and  Andrews, 
Principles  of  Labor  Legislation,  p.  446.  This  hook  contains  (ch.  ix)  a  valuable 
discussion  of  the  problem  of  administrative  organization. 


326        STATE   GOVERNMENT  IN  UNITED   STATES] 

NEED   FOR  FURTHER  ADMINISTRATIVE  REFORM 

The  process  of  state  administrative  reorganization  has  aroused 
some  misgivings  among  those  who  appreciate  the  advantages 
of  the  nineteenth  century  system  of  administrative  anarchy. 
It  has  been  feared  that  the  increasing  centralization  of  adminis- 
trative power  and  the  increasing  employment  of  specialists  and 
professional  administrators  would  drive  the  ordinary  citizen, 
the  amateur  administrator,  out  of  the  public  service.  This 
apprehension  is  unfounded.  The  plain  citizens  whose  pride  in 
the  performance  of  civic  duty  leads  them  to  accept  local  adminis- 
trative offices  are  not  being  supplanted  by  the  expert  in  the 
employ  of  the  state.  Their  work  for  the  most  part  is  being 
supplemented,  not  supplanted,  for  the  principal  cause  of  cen- 
tralization is  the  increase  in  the  activities  of  the  state.  The 
process  of  centralization  is  a  process  of  division  of  labor.  There 
was  never  a  time  when  there  was  more  opportunity  for  public- 
spirited  spare-time  service  on  the  part  of  the  people  of  the 
towns  and  cities.  There  is  also  ever  growing  opportunity  for 
specialized  service  on  the  part  of  experts,  devoting  their  whole 
time  to  the  solution  of  the  social  and  industrial  problems  which 
a  progressive  civilization  makes  constantly  more  urgent  and 
more  technical.  An  examination  of  the  present  results  of  ad- 
ministrative reorganization  indicates  that  the  public  service 
has  not  yet  been  so  organized  as  to  cope  with  these  new  problems 
most  effectively.1  The  process  of  centralization  must  go  further, 
the  process  of  integration  must  go  much  further,  before  the 
state  governments  can  satisfactorily  perform  the  newer  duties 
that  are  pressing  upon  them.  The  states  need  a  more  scientific 
system  of  administrative  organization.  They  need  better 
arrangements  for  the  selection  and  employment  of  experts  in 
the  more  technical  branches  of  public  administration.  Above 
all  they  need  a  real  chief  executive.  If  the  governor  cannot  be 
permitted  to  perform  the  duties  of  such  an  office,  the  need  will 
have  to  be  met  in  some  other  way. 

1  In  New  York  and  a  few  other  states,  notably  Michigan  and  Wisconsin,  the 
governor  may  remove  certain  local  administrative  officers  for  neglect  of  duty  or 
inefficiency,  namely  sheriffs  and  district  attorneys.  This  is  good  so  far  as  it  goes, 
but  it  is  only  the  beginning  of  administrative  reorganization. 


THE   STATE  EXECUTIVES  327 

THE  RELATION  BETWEEN  THE  EXECUTIVE  AND   THE 
LEGISLATURE 

The  change  in  the  character  of  the  office  of  governor,  result- 
ing from  the  reformation  of  the  original  state  governments  and 
the  redivision  of  powers  between  their  several  branches,  has 
brought  about  a  corresponding  change  in  the  normal  relations 
between  the  executive  and  the  legislature.  By  the  middle  of 
the  nineteenth  century,  as  has  been  indicated,  the  governor 
had  been  shorn  of  most  of  his  administrative  responsibilities 
and  had  become  primarily  a  legislator.  The  subsequent  re- 
construction of  state  administration  in  response  to  changing 
social  and  economic  conditions  has  not  restored  the  adminis- 
trative character  of  the  gubernatorial  office.  It  has  rather 
tended  to  enhance  the  importance  of  the  governor's  legislative 
powers,  and  to  diminish  the  gap  that  once  was  supposed  to 
separate  the  chief  executive  from  the  legislature. 

THE  EXECUTIVE  VETO 

The  principal  source  of  the  present  legislative  authority  of 
the  chief  executive  is  the  veto  power.  In  1915  more  than  one 
thousand  separate  bills  or  parts  of  bills  failed  to  become  law 
because  of  executive  disapproval.  In  thirty-nine  states  about 
7  per  cent  of  the  total  number  of  bills  submitted  to  the  governors 
for  approval  were  vetoed.  The  use  of  the  veto  was  very  much 
greater  in  some  states  than  in  others.  The  governor  of  Cali- 
fornia disapproved  225  bills  or  parts  of  bills  out  of  a  total  of 
996  bills  adopted  by  the  legislature.  In  New  York  223  bills 
or  parts  of  bills  out  of  980  and  in  Pennsylvania  211  out  of  1003 
were  the  subject  of  executive  disapproval.  At  the  other  ex- 
treme, there  was  no  use  of  the  veto  in  Rhode  Island,  and  in 
four  states  there  was  only  one  veto  each.  Doubtless  many 
factors  affect  the  use  of  the  veto  power  by  the  state  governors, 
but  the  most  important  is  the  nature  of  the  power  itself.  In 
the  states  where  the  governor  could  veto  separate  items  in 
appropriation  bills  there  were  nearly  ten  times  as  many  vetoes 
in  proportion  to  the  total  number  of  bills  as  in  the  states  where 
the  governors  did  not  possess  that  power.  In  the  latter  class 


328       STATE  GOVERNMENT  IN  UNITED  STATES 

of  states  the  governors  vetoed  on  the  average  about  one  bill 
in  seventy.  In  the  former  class  they  vetoed  either  as  a  whole 
or  in  part  on  the  average  about  one  in  seven.  The  veto  power 
is  in  general  effective.  Comparatively  few  measures  are  re- 
enacted  by  the  legislatures  after  they  have  been  returned  with- 
out the  approval  of  the  executive.  In  1915  in  only  five  out  of 
thirty-nine  states  were  any  bills  or  parts  of  bills  passed  over 
the  executive  veto.  Out  of  a  total  of  1066  vetoes  only  twenty- 
two  were  overriden  by  the  legislatures.  In  other  words,  98  per 
cent  of  all  the  vetoes  were  effective. 

The  effectiveness  of  the  veto  power  as  a  means  of  executive 
control  of  legislation  is  increased  by  the  rules  adopted  in  many 
states  governing  the  use  of  the  so-called  "pocket"  veto.  By 
the  Federal  Constitution  the  President  is  allowed  ten  days  in 
which  to  examine  congressional  enactments  and  affix  his  signa- 
ture to  those  he  approves.  A  bill  becomes  law  without  his 
approval,  if  he  fails  to  return  it  within  that  period  to  the  house 
in  which  it  originated  with  a  statement  of  the  reasons  for  his 
disapproval.  But  if  Congress  adjourns  within  ten  days  after 
sending  a  bill  to  the  President,  and  his  signature  is  not  affixed 
before  adjournment,  the  bill  does  not  become  law.  Failure  on 
the  part  of  the  President  to  sign  such  a  bill  before  the  adjourn- 
ment of  Congress  operates  therefore  as  an  absolute  veto,  and 
is  called  the  "pocket"  veto.  A  similar  rule  existed  in  many 
of  the  states  and  was  found  to  work  badly.  Because  of  the 
constitutional  limitations  upon  the  length  of  legislative  sessions 
and  the  practice  of  adopting  most  legislation  in  the  closing  days 
of  the  session,  the  governors  had  insufficient  time  in  which 
to  examine  the  bills  submitted  to  them  for  approval.  Conse- 
quently they  were  forced  either  to  sign  many  bills  which,  could 
they  examine  them  with  care,  they  would  veto,  or  else  to  run  the 
risk  of  "killing"  measures  which  might  on  careful  examination 
prove  unobjectionable.  In  order  to  remove  this  difficulty, 
many  states  have  provided  that  bills  shall  become  law  unless 
vetoed  by  the  governor  within  a  specified  period  after  the  ad- 
journment of  the  legislature.  This  period  extends  from  five 
days  in  several  states  to  thirty  days  in  Pennsylvania  and  a 
few  others.  Such  a  rule  gives  the  governor  more  opportunity 
to  examine  the  legislative  output,  and  enables  him  to  exercise 


THE  STATE  EXECUTIVES  329 

his  absolute  veto  more  deliberately  and  confidently.  In  a  few 
states,  notably  New  York  and  California,  the  governor's  power 
is  even  stronger.  He  is  allowed  thirty  days  for  the  examina- 
tion of  bills  enacted  at  the  close  of  the  session,  and  no  bill  be- 
comes a  law  unless  signed  by  him  within  that  period.  In  such 
states  the  governor  sits  after  the  close  of  the  legislative  session 
practically  as  a  third  chamber.  He  grants  hearings  to  advocates 
and  opponents  of  measures  which  have  received  legislative  ap- 
proval, refers  legal  and  financial  questions  to  his  attorney-general 
or  other  advisers,  and  in  general  does  what  he  can  to  determine 
for  himself  whether  the  measures  proposed  by  the  legislature 
should  be  enacted.  In  such  states  as  New  York,  Pennsylvania, 
and  California,  the  legislative  output  is  so  great  that  even  in 
thirty  days  the  governor  cannot  examine  it  all  for  himself.  He 
must  delegate  a  part  of  the  task  to  others,  organize  a  council 
of  revision,  so  to  speak,  and  rely  in  many  cases  upon  the  advice 
of  his  informal  councilors.  Thus  ancient  practices  reappear 
under  modern  forms. 

The  increase  in  the  effectiveness  of  the  veto  power  has  re- 
acted upon  the  general  position  of  the  governor  and  his  relation 
to  the  legislature.  His  influence  over  legislation  is  much  greater 
than  is  indicated  by  the  number  of  bills  actually  vetoed  by  him. 
Many  bills  which  it  is  known  the  governor  will  not  approve 
will  not  be  adopted  by  the  legislature,  or  will  be  amended  in 
the  hope  of  removing  the  grounds  of  executive  disapproval. 
Legislators  may  even  support  measures  known  to  be  favored 
by  the  executive  in  order  to  avoid  executive  disapproval  of 
private  and  local  bills  in  which  they  may  be  especially  interested. 
Since  the  effectiveness  of  the  veto  power  is  a  matter  of  common 
knowledge,  the  promoters  of  legislation  often  seek  executive 
approval  for  proposed  legislation  before  its  introduction  into 
the  legislatures.  The  governors  are  induced,  if  possible,  to 
endorse  important  projects  of  legislation  in  their  annual  mes- 
sages to  the  legislatures,  or  to  assist  them  by  sending  in  special 
messages.  The  executive  messages  are  looked  to  by  the  people 
of  the  states  as  legislative  programs,  and  consequently  exert  a 
greater  influence  upon  the  course  of  legislation  than  any  speeches 
that  may  be  pronounced  by  ordinary  members  on  the  floor  of 
either  house.  Members  are  prone  to  look  to  the  governor  not 


330        STATE   GOVERNMENT  IN  UNITED   STATES 

only  to  outline  the  legislative  program,  but  also  to  prevent  the 
adoption  of  undesirable  legislation  which  it  may  be  inconvenient 
for  them  to  defeat.  This  shifting  of  responsibility  has  gone 
so  far  in  some  states  that  the  governor  exerts  a  more  powerful 
and  beneficial  check  upon  legislation  adopted  by  both  houses 
than  either  house  does  upon  that  adopted  by  the  other.  This 
seems  to  be  the  case,  for  example,  in  New  York.1  In  California 
an  instance  is  recorded  where  the  legislature  passed  two  con- 
tradictory bills  dealing  with  the  same  subject,  with  the  expec- 
tation that  the  governor  would  approve  the  better  of  the  two 
and  disapprove  the  other.2  In  short,  the  veto  power,  especially 
in  the  states  where  it  exists  in  its  most  effective  form,  has  enor- 
mously enhanced  the  authority  of  the  governor  in  his  dealings 
with  the  legislature. 

The  growth  of  the  legislative  authority  of  the  governor  has 
been  accompanied  by  a  change  in  the  conception  of  the  office 
itself.  Originally  the  governor  was  armed  with  the  veto  power 
primarily  in  order  that  he  might  protect  his  own  office  and  the 
executive  department  generally  against  legislative  encroach- 
ments. It  seems  to  have  been  anticipated  that  such  encroach- 
ments were  most  likely  to  come  in  the  form  of  unconstitutional 
enactments,  which  the  veto  power  might  help  to  avert.  The 
use  of  the  veto  power  to  control  legislation  not  directly  relating 
to  the  interests  of  the  executive  was  a  secondary  consideration.3 
At  present,  however,  few  vetoes  are  for  the  purpose  of  defending 
the  constitutional  prerogatives  of  the  executive.  Only  a  small 
proportion  of  the  vetoes  apply  to  important  public  general  acts. 
Most  of  them  deal  with  ill  considered  or  badly  drawn  public 
acts  of  minor  importance,  private  and  local  measures,  and  ap- 
propriations, particularly  for  salaries  and  special  objects  of 
various  kinds.  Governor  Hughes  of  New  York  headed  his 
omnibus  veto  message  of  1910,  covering  118  bills  which  he  de- 
clined to  approve  after  the  close  of  the  session,  as  follows  :  —  "  The 
following  bills  are  not  approved  because  they  are  either  duplicates 
or  unnecessary,  or  are  defectively  drawn,  or  are  embraced  in  or 
conflict  with  bills  already  signed,  or  are  unconstitutional,  or  are 

1  See  D.  C.  Colvin,  The  Bicameral  Principle  in  the  New  York  Legislature,  p.  112. 
*  See  P.  S.  Reinsch,  American  Legislatures  and  Legislative  Methods,  p.  284. 
1  See  The  Federalist,  no.  73. 


THE  STATE  EXECUTIVES  331 

for  purposes  which  can  be  suitably  accomplished  under  general 
laws,  or  should  be  provided  for,  if  at  all,  by  amendments  to  the 
general  law,  or  are  objectionable  and  inadvisable  by  reason  of 
proposed  changes."  1  In  short,  the  office  of  governor  tends  to 
be  regarded  as  an  agency  for  supplying  the  deficiencies  in  the 
legislative  branch  of  state  government  which  result  from  the 
defective  organization  of  the  legislatures  and  from  defective 
legislative  procedure. 

APPROPRIATIONS  AND  FINANCE 

The  development  of  the  veto  power  has  thrown  upon  the 
governor  in  two-thirds  of  the  states  important  duties  in  connec- 
tion with  the  revision  of  appropriations  after  they  have  been 
made  by  the  legislature.  But  the  states  have  been  much  slower 
to  give  the  governor  a  voice  in  the  preparation  of  appropriation 
bills  before  they  are  acted  upon  in  the  legislature.  The  natural 
jealousy  of  the  executive  power  at  the  time  of  the  Revolution 
caused  the  people  of  the  original  states  to  put  complete  control 
of  public  finance  in  the  legislatures,  and,  subject  to  the  veto 
power,  there  it  has  remained. 

The  traditional  practice  in  the  American  states  with  respect 
to  the  voting  of  the  appropriations  is  thoroughly  consistent  with 
a  decentralized  and  disintegrated  administrative  system.  Ap- 
propriations for  certain  purposes  are  required  and  their  amounts 
may  even  be  fixed  by  the  state  constitutions.  Chief  among 
these  are  the  salaries  of  the  members  of  the  legislature,  of  the 
principal  executive  officers,  and  of  the  judiciary.  Other  ap- 
propriations are  determined  by  the  legislatures.  In  a  dozen 
states,  including  several  of  the  largest,  all  appropriations  are 
limited  to  two  years.  Elsewhere  the  legislatures  may  make  the 
appropriations  for  such  period  as  they  please.  A  few  states, 
notably  Michigan  and  Wisconsin,  provide  permanent  appropria- 
tions for  the  principal  objects  of  expenditure.  A  tendency 
towards  permanent  appropriations  for  certain  purposes,  notably 
education,  is  quite  general.  Special  appropriations  for  private 
and  local  objects  are  often  made  without  any  limit  of  time. 

1  See  D.  L.  Colvin,  The  Bicameral  Principle  in  the  New  York  Legislature,  p.  115. 


332        STATE  GOVERNMENT  IN  UNITED  STATES 

With  these  exceptions,  appropriations  for  general  governmental 
purposes  ordinarily  expire  at  the  close  of  the  fiscal  year,  and 
unexpended  balances  revert  to  the  state  treasury.  Each  de- 
partment of  administration  ordinarily  reports  directly  to  the 
legislature  upon  the  expenditure  of  its  appropriation,  and  trans- 
mits in  the  same  manner  its  estimates  of  the  appropriations 
necessary  and  proper  for  the  ensuing  year,  or,  in  the  case  of 
states  where  the  legislature  meets  biennially,  two  years.  Or- 
dinarily neither  the  governor  nor  any  other  executive  officer 
has  anything  to  do  with  any  departmental  estimates  save  his 
own.  In  some  states  a  more  orderly  practice  has  grown  up. 
Thus,  in  Massachusetts,  department  heads  submit  their  es- 
timates in  advance  of  the  meeting  of  the  legislature  to  the  state 
auditor.  He  then  arranges  them  in  some  systematic  order, 
together  with  a  comparative  statement  of  departmental  ex- 
penditures for  preceding  years,  and  submits  the  whole  as  one 
report  to  the  legislature. 

The  legislatures  refer  the  departmental  reports  and  estimates 
to  standing  committees.  The  practice  differs  in  different  states. 
In  some  there  are  several  committees  with  jurisdiction  over 
different  classes  of  appropriations.  In  others  all  appropriation 
bills  must  be  referred  to  a  single  committee.  In  some  states 
there  are  separate  appropriations  committees  in  each  house. 
In  others  there  is  a  single  joint  committee.  In  some  states 
bills  that  carry  appropriations,  not  required  to  cover  depart- 
mental estimates,  may  be  reported  by  various  committees,  with- 
out consultation  either  with  the  departments  concerned  or  with 
the  appropriation  committee.  In  most  states  such  bills  must 
be  referred  before  final  action  by  the  house  to  the  appropriation 
committee.  Thus  there  is  some  centralized  control  over  the 
appropriation  bills  in  most  legislatures.  But  the  department 
heads  must  appear  before  the  appropriation  committee  and 
demonstrate  the  necessity  and  propriety  of  the  appropriations 
for  which  they  have  asked.  They  appear  independently,  each 
working  solely  for  his  own  department,  and  responsible  in  no 
way  for  other  departments  or  for  the  size  of  the  state  appropria- 
tions as  a  whole.  Since  every  active  department  head  normally 
wants  to  expand  the  services  of  his  own  department  and  is  likely 
to  overrate  its  importance  as  compared  with  others,  depart- 


THE  STATE  EXECUTIVES  333 

mental  estimates  tend  to  increase  year  by  year,  without  much 
regard  to  the  general  growth  of  public  expenditures  and  revenues. 
Thus  the  legislature  is  confronted  with  the  difficult  task  of  re- 
ducing the  estimates  in  order  to  keep  the  total  appropriations 
within  reasonable  compass.  This  task  is  made  more  difficult 
by  the  number  and  magnitude  of  the  special  and  local  appropria- 
tions which  many  districts  want  their  representatives  to  procure 
for  them  in  addition  to  the  appropriations  for  regular  depart- 
mental work. 

This  system  inevitably  breeds  extravagance  and  inefficiency. 
The  departmental  reports  ordinarily  present  no  clear  picture 
of  the  fiscal  operations  of  the  state  as  a  whole,  the  estimates  of 
the  various  department  heads  are  likely  to  be  excessive,  and 
their  recommendations  unrelated  to  one  another  or  to  any  co- 
ordinated administrative  policy.  The  officer,  if  any,  who  col- 
lects the  estimates  and  transmits  them  to  the  legislature  has 
no  control  over  them,  the  department  heads  themselves  have  no 
constitutional  right  to  defend  their  estimates,  and  in  practice 
the  legislature  may  disregard  them.  The  result  tends  to  be 
perfunctory  work  on  the  part  of  the  state  fiscal  officers.  In- 
telligent planning  for  the  future  by  the  administration  is  almost 
impossible.  Even  the  balance  of  current  appropriations  and 
revenues  is  made  difficult.  The  states  have  sought  to  correct 
these  evils  by  constitutional  limitations  upon  the  power  to 
contract  debts,  but  such  remedies  are  unsatisfactory.  They 
do  not  necessarily  curb  extravagance  and  waste.  They  may 
merely  operate  to  curtail  important  activities  of  the  state  ad- 
ministration, whilst  money  is  squandered  upon  objects  in  which 
the  legislature  may  be  more  directly  interested.  Under  such 
circumstances  the  departments  with  the  most  political  influence 
are  likely  to  receive  the  most  favorable  treatment  at  the  hands 
of  the  legislatures.  If  that  influence  is  created  by  the  use  of 
departmental  funds  in  accordance  with  the  desires  of  influential 
members  of  the  legislature  or  party  leaders,  politics  and  adminis- 
tration become  confused  to  the  detriment  of  the  public  interest. 
It  is  not  surprising  that  the  strong  hand  of  the  governor  is  wel- 
comed as  a  means  of  controlling  such  an  unbusinesslike  system. 
In  New  York  in  1910  the  appropriations  were  reduced  thirteen 
times  as  much  by  the  executive  veto  as  by  the  veto  which  the 


334        STATE  GOVERNMENT  IN  UNITED   STATES 

upper   house    possessed   over  money   bills   originating   in   the 
lower.1 

A  tendency  has  recently  appeared  in  various  states  to 
strengthen  executive  control  of  appropriations  by  introducing 
the  principle  of  the  budget.  A  budget  is  a  set  of  estimates  for 
all  administrative  departments,  prepared,  upon  the  basis  of 
the  reports  of  the  department  heads,  by  a  single  executive  officer 
or  board.  Thus,  in  Connecticut,  a  state  board  of  finance  was 
created  in  1915,  consisting  of  the  treasurer,  comptroller,  and  tax 
commissioner,  with  three  additional  members  appointed  by  the 
governor.  All  department  heads  are  required  to  submit  to 
this  board  itemized  statements  of  the  desired  appropriations. 
The  board  is  required  to  hold  hearings  on  these  estimates  and 
to  report  its  recommendations  to  the  legislature.  This  report 
is  referrred  to  a  joint  committee  on  appropriations,  to  which 
all  bills  entailing  appropriations  are  likewise  referred,  unless 
otherwise  ordered  by  a  two-thirds  vote  in  each  house.  The 
board  of  finance  and  the  legislative  committee  are  required  to 
hold  joint  meetings,  and  are  empowered  to  originate  and  report 
to  the  legislature  such  appropriation  bills  as  they  deem  necessary 
and  proper.  In  North  Dakota,  also  in  1915,  a  state  budget 
board  was  created,  consisting  of  the  governor,  the  chairmen  of 
the  appropriation  committees  of  the  two  houses  of  the  preced- 
ing legislature,  the  attorney-general,  and  the  state  auditor.  In 
Washington  a  state  board  of  finance  was  created,  consisting  of 
the  governor,  the  auditor,  and  treasurer.  In  Minnesota  and 
Nebraska  the  governor  alone  was  made  the  budget  officer.  In 
each  case  it  is  the  duty  of  the  budget  board  or  officer  to  secure 
estimates  from  the  department  heads  in  advance  of  the  meeting 
of  the  legislature,  investigate  their  necessity  and  propriety,  re- 
vise them,  and  report  with  recommendations  to  the  legislature. 
These  acts  differ  with  respect  to  the  personnel  of  the  budget- 
making  authority,  but  they  are  alike  in  fixing  responsibility 
upon  a  single  executive  officer  or  body  for  the  total  amount  of 
the  estimated  appropriations  and  their  apportionment  between 
different  departments.  This  responsibility  is  most  effectively 
fixed  where  the  budget  officer  is  the  governor.  Unfortunately, 

1  See  D.  L.  Colvin,  op.  cit.,  p.  113.  See  also  E.  E.  Agger,  The  Budget  in  theAmeri* 
can  Commonwealths,  chs.  ii  and  iii. 


THE   STATE  EXECUTIVES  335 

as  things  are  now,  few  governors  have  either  the  time  or  the 
necessary  means  at  their  disposal  to  prepare  a  satisfactory 
budget  before  the  meeting  of  the  legislature.  There  is  further 
need  for  an  executive  staff  to  serve  under  the  governor's  direc- 
tion and  assist  in  the  preparation  of  the  budget.  Under  none 
of  these  laws,  moreover,  is  there  any  limitation  upon  the  power 
of  the  legislature  to  deal  as  it  may  see  fit  with  the  recommenda- 
tions of  the  budget-making  authorities;  but  if,  in  those  states 
where  the  governor  may  veto  items  in  appropriation  bills,  he 
were  resolutely  to  use  that  power  in  support  of  the  budget, 
the  legislature  would  be  less  likely  to  increase  the  appropriations 
above  the  amounts  estimated  in  the  budget.  Thus  the  adoption 
of  the  executive  budget  should  tend  to  promote  both  economy 
and  efficiency.1 

In  most  of  the  states  the  traditional  system  of  appropriations 
remains  in  full  force.  Under  this  system  the  control  of  ap- 
propriations in  the  first  instance  rests  with  the  legislative  leaders, 
above  all  with  the  chairman  and  members  of  the  committee  on 
ways  and  means  or  appropriations.  Through  their  control 
over  appropriations  they  exercise  more  real  influence  upon  the 
actual  conduct  of  state  administration  than  the  governor  him- 
self. They,  rather  than  he,  are  the  actual  heads  of  the  state 
administration.  In  other  words,  if  the  governor  may  be  said 
to  be  the  chief  legislator  of  the  state,  the  house  chairman  of 
ways  and  means  may  be  regarded  as  the  chief  administrator. 

THE  POWER  OF  APPOINTMENT 

The  power  of  appointment  to  subordinate  administrative 
offices  is  the  power  that  would  seem  most  necessary  and  proper 
for  a  chief  executive.  It  has  never  been  fully  conferred,  however, 
upon  the  governors  of  the  states.  In  the  beginning,  as  already 
indicated,  it  was  restricted  by  the  requirement  that  executive 
appointments  be  approved  by  executive  councils.  The  governor 
could  nominate,  he  could  not  confirm.  With  the  adoption  of 
the  practice  of  electing  the  principal  executive  officers  directly 
by  the  people,  and  the  transfer  to  the  state  senates  of  the  power 

1  For  a  description  of  the  budget  plan  proposed  by  the  New  York  constitu- 
tional convention  of  1915,  see  post,  ch.  xiv. 


336       STATE  GOVERNMENT  IN  UNITED  STATES 

of  confirming  nominations  to  inferior  offices,  so  far  as  these 
were  not  vested  in  independent  department  heads,  the  govern- 
or's power  of  appointment  declined  to  a  minimum.  Under 
such  conditions  the  maxim,  To  the  victor  belong  the  spoils, 
was  more  than  a  candid  confession  of  faith  by  politicians  flushed 
with  success  at  the  polls.  It  was  a  fair  statement  of  the  normal 
operation  of  the  constitutional  arrangements  for  filling  adminis- 
trative offices  under  the  state  governments.  So  far  as  concerns 
those  offices  which  are  filled  by  popular  election,  the  maxim  was 
obviously  sound.  The  spoils,  that  is,  the  offices,  certainly  fell 
into  the  hands  of  the  successful  candidates.  In  the  middle  of 
the  nineteenth  century  the  principal  state  offices  were  of  that 
character.  The  distribution  of  these  " spoils"  was  directly 
controlled  by  those  who  controlled  the  nominating  machinery 
of  the  political  parties.  Thus  the  leaders  of  the  party  organiza- 
tions acquired  the  habit  of  looking  upon  all  the  patronage  as 
theirs  to  be  used  for  the  good  of  the  organizations.  Having 
"had  enough  experience  in  politics  to  know  how  valuable  workers 
are  when  the  campaign  is  on  and  how  difficult  it  is  to  find  suit- 
able rewards  for  all  the  deserving,"  it  was  natural  to  use  what 
little  patronage  there  was  at  the  disposal  of  the  elective  state 
officials  to  reward  "deserving"  party  workers.1  In  short,  the 
appointing  power  came  to  be  intimately  associated  with  the 
organization  of  parties  and  the  conduct  of  elections. 

The  power  of  appointment  consequently  tended  to  fall  into 
the  hands  of  the  leaders  of  the  party  organizations.  It  is  not 
difficult  for  the  party  leaders  to  control  appointments  vested 
in  minor  elective  state  officials,  wherever  they  can  control  the 
nomination  of  such  officials.  To  control  the  appointments 
of  the  governor,  however,  it  is  necessary  to  control  a  majority 
of  the  confirming  body,  the  state  senate.  As  a  state  organiza- 
tion comprises  the  district  leaders  in  the  senatorial  districts, 
the  leaders  of  a  state  organization  are  likely  to  control  the  senate 
whenever  their  party  is  in  power.  Thus  a  party  leader  need 
not  himself  be  governor  in  order  to  control  the  distribution  of 
the  patronage.  Indeed,  the  separation  of  party  leadership 
from  official  administration  has  been  one  of  the  most  conspicuous 

1  See  Letter  of  W.  J.  Bryan  to  W.  W.  Vicks,  American  Collector  at  San  Domingo, 
August  20,  1913. 


THE  STATE  EXECUTIVES  33} 

features  of  the  traditional  system  of  state  politics.  Under 
such  a  system  the  interests  of  "organizations"  are  not  identical 
with  those  of  the  parties  for  which  the  organizations  assume  to 
act,  just  as  the  interests  of  parties  are  not  identical  with  those 
of  the  people  as  a  whole.  When  party  organizations  are  man- 
aged primarily  in  the  interests  of  the  leaders  or  " bosses,"  that 
is,  when  corrupt  "machine  rule"  prevails,  the  interests  of  the 
bosses  of  the  two  major  parties  become  fundamentally  iden- 
tical.1 ' '  The  most  undesirable  bosses  do  not  hold  the  offices  which 
they  control,  yet  they  really  form  the  all-powerful  invisible 
government  which  is  responsible  for  the  administration  and 
corruption  of  the  public  offices  of  the  state." 2  Bi-partisan 
"machine  rule"  seems  to  have  prevailed  at  times  in  more  than 
one  state.  In  general,  however,  the  power  of  a  boss,  whether 
he  be  a  desirable  or  an  undesirable  boss,  is  indeterminate,  de- 
pending much  on  the  personalities  of  the  official  and  unofficial 
leaders.  It  is  on  the  whole  exceptional  for  a  single  boss  to  hold 
undisputed  sway,  or  to  hold  any  sway  for  long.  The  power 
is  more  commonly  divided  among  several  leaders,  and  the  limits 
of  their  power  and  the  duration  of  their  tenure  are  ill-defined. 

The  manner  in  which  a  well-defined  boss  system  operates 
with  respect  to  executive  appointments  was  clearly  brought 
out  by  the  evidence  in  the  Barnes-Roosevelt  libel  case.  Roose- 
velt testified  that,  when  governor,  he  habitually  consulted 
Senator  Platt,  the  Republican  state  boss,  before  making  ap- 
pointments. In  recommending  men  for  appointment  to  posi- 
tions allotted  to  the  minority  party,  the  evidence  showed  that 
Platt  in  his  turn  was  accustomed  to  consider  the  wishes  of 
Croker,  the  Democratic  boss.  When  asked  why  he  consulted 
Platt,  Roosevelt  answered  that  he  had  to,  if  he  wanted  to  have 
his  nominations  confirmed.  Question.  '  That  is,  you  had  to 
be  in  alliance  with  the  invisible  government,  so-called,  to  get 
the  nominations  confirmed?"  Answer.  "To  get  the  nomina- 
tions confirmed  I  had  to  have  the  support  of  the  senate,  and 
the  senate  was  responsive  to  Mr.  Platt's  wishes."  Ordinarily 

1  It  was  Theodore  Roosevelt's  charge  that  the  interests  of  the  Republican  leader 
Barnes  and  the  Democratic  leader  Murphy  were  fundamentally  identical,  which 
led  to  the  libel  action  of  Barnes  v.  Roosevelt,  tried  at  Syracuse,  N.Y.,  in  April 
and  May,  1915. 

1  Quotation  from  the  alleged  libellous  speech  by  Roosevelt. 


338       STATE  GOVERNMENT  IN  UNITED  STATES 

Roosevelt  made  no  appointments  of  any  kind,  even  those  not 
dependent  upon  senatorial  confirmation,  until  he  had  ascer- 
tained that  they  would  not  be  objectionable  to  the  boss.  Yet 
Roosevelt  was  not  a  subservient  governor.  In  Senator  Platt's 
autobiography,  published  five  years  before  the  Barnes-Roosevelt 
trial,  it  is  stated  that  "Roosevelt  had  from  the  first  agreed  that 
he  would  consult  me  on  all  questions  of  appointments.  .  .  . 
He  religiously  fulfilled  this  pledge,  although  he  frequently  did 
just  what  he  pleased.  .  .  .  Roosevelt  told  me,  for  instance, 
that  he  proposed  to  remove  Lou  Payn.  I  protested,  but  he 
was  removed,  and  I  was  consulted  about  the  appointment  of 
his  successor."  l 

Broadly  speaking,  there  are  three  types  of  state  governor. 
First,  there  are  those  who  humbly  accept  the  leadership  of  the 
heads  of  the  party  organization  and  dutifully  perform  their 
part  in  the  operation  of  the  "machine."  Secondly,  there  are 
those  who  recognize  the  power  of  the  organization  but  treat  a 
boss  as  an  associate  rather  than  as  a  master.  Thirdly,  there 
are  those  who  seek  themselves  to  become  bosses.  These  types, 
however,  are  not  always  clearly  defined.  Sometimes  the  same 
governor  appears  in  one  character  at  one  time,  in  another  at 
another.  In  short,  the  actual  relations  between  governors  and 
legislatures  in  the  matter  of  appointments  are  exceedingly 
uncertain  and  obscure.  In  general,  however,  the  power  of 
appointment,  subject  to  senatorial  confirmation,  seems  to  be  a 
source  of  weakness  rather  than  of  strength  to  state  governors. 

CIVIL  SERVICE  REFORM 

The  reconstruction  of  state  administration  since  the  middle 
of  the  nineteenth  century  has  greatly  increased  the  importance 
of  the  power  of  appointment.  In  Massachusetts  there  are 
now  more  than  ten  thousand  state  employees.  In  New  York 
there  are  more  than  eighteen  thousand.  Many  of  these  hold 
positions  requiring  exceptional  training  or  skill.  The  central- 
ization of  state  administration,  especially  in  such  departments 
as  education,  health,  charities,  and  corrections,  has  created  an 

1  See  Autobiography  of  Thomas  Collier  Plait,  compiled  and  edited  by  Louis  J.  Lang, 
PP.  374-375- 


THE  STATE  EXECUTIVES  339 

unprecedented  demand  for  experts  in  the  public  service.  Many 
more  hold  subordinate  positions  requiring  no  exceptional  train- 
ing or  skill.  In  such  positions  the  principal  requirements  are 
attention  to  work  and  fidelity  to  the  public  interests.  The 
treatment  of  such  positions  as  "spoils,"  making  the  tenure  of 
office  dependent  upon  the  fluctuating  fortunes  of  political 
parties,  or  even  of  different  factions  within  the  same  party, 
demoralizes  the  public  service.  Competent  experts  will  not 
accept  public  employment  upon  such  terms.  Diligence  and 
zeal  among  the  rank  and  file  are  discouraged.  Moreover,  "the 
use  of  government  offices  as  patronage  is  a  handicap  difficult 
to  overestimate  from  the  standpoint  of  those  who  strive  to  get 
good  government.  Any  effort  for  reform  .  .  .  results  in  the 
reformers  immediately  finding  themselves  face  to  face  with 
an  organized  band  of  drilled  mercenaries  who  are  paid  out  of 
the  public  chest  to  train  themselves  with  such  skill  that  ordinary 
good  citizens  when  they  meet  them  at  the  polls  are  in  much  the 
position  of  militia  matched  against  regular  troops.  .  .  .  Civil 
service  reform  is  designed  primarily  to  give  the  average  American 
citizen  a  fair  chance  in  politics."  l 

The  evil  results  of  the  "spoils"  system,  as  applied  to  purely 
administrative  offices,  were  recognized  as  soon  as  the  adminis- 
trative work  of  the  state  governments  began  to  become  impor- 
tant. In  order  to  get  the  civil  service  out  of  politics,  the  system 
of  civil  service  reform,  popularly  known  as  the  "merit"  system, 
was  devised.  The  agitation  for  the  introduction  of  the  "merit" 
system  began  shortly  after  the  Civil  War,  and  was  at  first  directed 
chiefly  towards  the  reform  of  the  federal  civil  service,  in  which 
the  evils  of  the  "spoils"  system  were  most  serious  and  most 
notorious.  The  assassination  of  President  Garfield  by  a  dis- 
appointed office  seeker  accelerated  the  adoption  of  the  reform 
by  Congress,  and  since  the  enactment  of  the  first  civil  service 
law  in  1883  the  "merit"  system  has  been  extended  throughout 
a  large  part  of  the  federal  service.  Its  progress  in  the  states 
has  been  much  slower.  It  was  established  in  New  York  in 
1883  and  in  Massachusetts  in  the  following  year.  Twenty 

'See  Theodore  Roosevelt,  Autobiography,  pp.  146-147.  The  entire  chapter 
entitled  "Applied  Idealism  "  is  an  excellent  exposition  of  the  object  and  nature  of 
civil  service  reform. 


340       STATE  GOVERNMENT  IN  UNITED  STATES 

years  passed  before  any  other  states  adopted  the  reform.  Since 
1905,  however,  it  has  been  introduced  into  several  other  states.1 

The  object  of  the  "merit"  system  is  to  fill  administrative 
offices  with  the  most  fit  persons  available  without  regard  to 
political  affiliations.  This  object  is  sought  by  classifying  sub- 
ordinate positions  in  the  public  service  according  to  their  char- 
acter and  giving  public  notice  of  vacancies  in  each  class.  Any 
qualified  citizen  may  apply  for  appointment,  and  the  relative 
fitness  of  all  applicants  is  determined,  so  far  as  practicable,  by 
competitive  examinations.  Candidates  are  rated  according  to 
their  fitness,  and  the  names  of  those  with  the  highest  ratings 
are  certified  to  the  appointing  officers  whenever  appointments 
are  to  be  made.  Appointing  officers  are  required  to  make  all 
permanent  appointments  from  the  certified  lists,  though  they 
generally  have  some  latitude  of  choice.  The  practice  varies 
with  respect  to  the  tenure  of  civil  service  appointees.  In  some 
states  no  permanent  officeholder  within  the  classified  service 
may  be  dismissed  without  the  filing  of  charges  and  a  formal 
hearing  before  the  civil  service  commissioners.  In  others  the 
power  of  dismissal,  except  for  political  or  religious  affiliations, 
is  unrestricted.  In  the  latter  states,  it  is  assumed  that  when 
the  appointing  officer  cannot  replace  a  discharged  civil  servant 
except  from  the  official  list  of  eligible  applicants,  there  will  be 
little  incentive  to  dismiss  any  employee  except  for  inefficiency 
or  misconduct.  In  general,  however,  the  weight  of  opinion 
seems  to  be  in  favor  of  further  restricting  the  power  of  dismissal. 

The  "merit"  system  has  improved  the  conduct  of  state  ad- 
ministration, wherever  it  has  been  administered  in  good  faith. 
It  has  reduced  political  influences  in  the  appointment  of  sub- 
ordinate officials  and  employees.  It  has  eliminated  the  unfit 
from  the  civil  service.  But  it  has  not  always  been  administered 
in  good  faith.  If  the  civil  service  commissioners  themselves 
owe  their  positions  to  political  influences,  they  may  feel  unduly 
dependent  upon  the  power  which  controlled  their  appointment. 
There  are  many  ways  in  which  they  can  connive  at  evasions  of 
the  spirit  of  the  system  in  the  interests  of  a  partisan  "machine." 

1  In  1905,  Wisconsin  and  Illinois  (Cook  County) ;  in  1007,  Colorado;  in  1908, 
New  Jersey;  in  1911,  Connecticut;  in  191 2,  Ohio  and  California;  in  191 5,  Louisiana 
(Port  of  New  Orleans)  and  Kansas. 


THE  STATE  EXECUTIVES  341 

Sometimes  the  civil  service  law  seems  expressly  devised  to  de- 
prive the  commissioners  of  the  necessary  independence.  Thus 
the  Colorado  law,  as  amended  in  1915,  provides  that  the  terms 
of  all  the  commissioners  shall  expire  simultaneously  at  the  be- 
ginning of  the  term  of  each  governor.  In  general  the  system 
does  not  go  far  enough  to  secure  the  best  results.  Promotions 
are  uncertain,  and  stop  altogether  before  the  most  responsible 
positions  are  reached.  Increases  of  salary  are  often  dependent 
upon  special  legislation,  and  the  principal  administrative  offices 
remain  outside  the  classified  service  and  are  filled  by  political 
appointments.  Thus  there  is  little  incentive  for  the  most 
capable  and  ambitious  to  enter  or  long  remain  in  the  service. 
The  distinction  between  administrative  and  political  offices 
needs  to  be  carried  further  towards  the  top  than  is  actually 
the  case  in  any  of  the  states  which  have  yet  adopted  the  " merit" 
system.  In  other  states  some  of  the  advantages  of  the  "merit" 
system  are  secured  by  the  creation  of  independent  department 
heads  in  the  most  important  branches  of  state  administration. 
Thus,  the  organization  of  the  departments  of  education  in  many 
states  is  such  that  the  appointment  of  subordinates  is  compara- 
tively free  from  ordinary  political  influences.  In  general,  how- 
ever, the  reform  of  the  civil  service  under  the  state  governments 
has  lagged  behind  civil  service  reform  in  the  nation  and  in  the 
cities. 

The  reform  of  the  civil  service  tends  to  strengthen  the  position 
of  the  governor  in  his  relations  with  the  legislature.  Patronage 
is  sometimes  described  as  a  kind  of  cement  serving  to  hold 
political  parties  together.  But  "patronage  does  not  really 
help  the  party.  It  helps  the  bosses  to  get  control  of  the  ma- 
chinery of  the  party."  l  The  reduction  of  political  influences 
in  the  making  of  purely  administrative  appointments  by  so 
much  reduces  the  power  of  the  "machine."  But  whatever 
reduces  the  power  of  the  "machine"  in  the  matter  of  appoint- 
ments correspondingly  increases  the  actual  authority  of  the 
constitutional  executives,  particularly  of  the  governor.  The 
less  dependent  the  governor  is  upon  senatorial  confirmation  of 
necessary  appointments,  the  more  effectively  he  can  use  his 
powers  to  recommend  measures  to  the  legislature  and  to  veto 

1  Theodore  Roosevelt,  op.  cil.,  p.  147. 


342        STATE  GOVERNMENT  IN  UNITED  STATES 

undesirable  legislation ;  in  other  words,  the  freer  he  is  to  develop 
the  possibilities  of  his  constitutional  position  as  special  represen- 
tative of  the  whole  people.  In  Massachusetts,  where  guberna- 
torial appointments  not  yet  brought  within  the  scope  of  the 
"merit"  system  are  subject  to  confirmation  by  an  independent 
executive  council  and  not  by  the  senate  as  in  most  states,  the 
influence  of  the  governor  in  the  matter  of  appointments  is 
greater  than  in  most  states.  The  maintenance  of  "boss  rule" 
through  control  of  the  legislature,  and  particularly  of  the  senate, 
is  more  difficult  than  in  states  where  political  conditions  in  other 
respects  resemble  those  in  Massachusetts.  In  short  the  intro- 
duction of  the  "merit"  system  marks  a  step,  not  in  the  limita- 
tion of  the  power  of  the  chief  executive,  but  in  the  limitation  of 
the  power  of  the  legislative  branch  and  of  non-elective  party 
leaders  and  bosses.  The  further  the  "merit"  system  is  carried 
up  the  scale  of  administrative  offices,  the  stronger  is  the  execu- 
tive branch  of  the  government,  both  in  its  internal  relations  and 
in  its  relations  with  the  legislature. 

THE  POWER  OF  IMPEACHMENT 

The  power  of  impeachment  was  originally  deemed  an  im- 
portant instrument  for  the  defense  of  the  legislatures  and  the 
people  against  executive  encroachments  and  possible  usurpation. 
However,  it  has  hitherto  proved  of  little  actual  importance. 
In  most  of  the  original  states  the  governors  were  chosen  by  the 
legislatures  for  short  terms,  and  there  was  no  real  need  of  the 
power  of  impeachment  to  maintain  the  supremacy  of  the  latter. 
Since  the  general  adoption  of  direct  popular  election  of  governors 
for  longer  terms  and  the  development  of  the  veto  power,  a  legis- 
lature which  could  not  override  an  executive  veto  would  have 
little  chance  of  successfully  impeaching  a  governor  on  the  ground 
that  he  had  refused  to  assent  to  laws  deemed  by  the  legislature 
to  be  for  the  public  good.  Since  the  decentralization  and  dis- 
integration of  the  state  executives  there  has  been  little  occasion 
to  use  the  power  of  impeachment  to  remove  governors  for  abuse 
of  their  administrative  powers.  In  fact,  there  have  been  only 
eight  cases  of  the  impeachment  of  governors  in  the  entire  history 
of  the  states.  Five  of  these  cases  occurred  in  the  South  during 


THE  STATE  EXECUTIVES  343 

the  period  of  reconstruction  after  the  Civil  War.  In  each  case 
governors  who  were  attempting  to  maintain  the  civil  or  political 
rights  of  the  freedmen  were  impeached  by  legislatures  under 
the  control  of  the  party  bent  on  asserting  white  supremacy 
in  state  politics.  One  governor  was  removed  from  office,  one 
resigned  to  escape  removal,  and  in  the  other  cases  the  charges 
were  dropped.  Two  governors  were  impeached  in  northern 
states  during  the  same  period.  One  was  acquitted,  and  the 
other  was  removed  from  office  on  account  of  embezzling  state 
funds.  The  eighth  case  of  impeachment  was  that  of  Governor 
Sulzer  of  New  York.  He  was  removed  from  office  nominally 
on  account  of  filing  an  incorrect  return  of  his  campaign  expenses 
and  suppressing  evidence  sought  by  a  legislative  committee 
appointed  to  investigate  his  alleged  misconduct.  He  was  really 
impeached  because  he  had  defied  the  political  "machine"  to 
which  he  owed  his  nomination  and  election  and  had  sought  to 
make  himself  leader  of  the  "organization."  Such  a  use  of  the 
power  of  impeachment  reacts  injuriously  upon  the  whole  party, 
and  cannot  be  regarded  as  a  normal  mode  of  maintaining  the 
supremacy  of  the  organization  over  those  whom  it  puts  in  office. 
In  general,  the  power  of  impeachment  must  be  regarded  as  an 
extraordinary  remedy  for  official  misconduct.  It  plays  no 
important  part  in  the  maintenance  of  the  existing  balance  of 
power  between  the  executive  and  legislative  branches  of  the 
state  governments. 

THE  RECALL 

The  recall  has  sometimes  been  advocated  as  a  substitute  for 
the  obsolescent  power  of  impeachment.  It  is  argued  that,  since 
the  process  of  impeachment  is  practically  unworkable,  the 
power  to  deprive  an  executive  of  office  before  the  expiration  of 
his  term  by  a  popular  vote  will  accomplish  the  same  purpose  more 
directly.  Usually,  however,  the  recall  is  advocated  on  the 
general  ground  that  the  voters  should  have  the  power  to  retire 
legislators  and  executives  from  office  whenever  they  lose  con- 
fidence in  them.  Executive  officers  can  be  impeached  only  for 
high  crimes  and  misdemeanors,  misfeasance  or  gross  misconduct 
in  office.  Legislators  cannot  be  impeached  at  all,  and  the 
legislatures  are  the  sole  judges  of  the  elections  and  qualifications 


344       STATE  GOVERNMENT  IN  UNITED  STATES 

of  their  own  members.  Consequently  neither  legislators  nor 
executives  can  be  removed  from  office  on  account  of  failure 
properly  to  represent  the  people  in  matters  of  policy  or  on  ac- 
count of  general  loss  of  popular  confidence  in  their  integrity 
or  capacity.  When  annual  elections  prevailed,  the  shortness  of 
the  term  of  office  made  the  discontinuity  of  popular  control 
unimportant.  With  the  extension  of  the  terms  of  elective  officers 
the  establishment  of  continuous  popular  control  became  more 
important.  The  longer  the  terms  of  elective  officers,  possessing 
the  power  to  determine  the  policy  of  the  state,  the  more  im- 
portant does  the  power  of  popular  recall  become. 

In  fact,  however,  few  attempts  have  been  made  to  use  the 
recall  for  the  purpose  of  retiring  state  officers.  No  important 
executive  officer,  nor,  with  one  exception,  member  of  a  legis- 
lature has  actually  been  retired  by  its  use.  Though  it  has  been 
not  infrequently  employed  in  municipalities,  its  employment  in 
the  states,  especially  for  the  retirement  of  officers  selected  in 
the  state  at  large,  involves  much  greater  effort  and  expense. 
In  states  where  terms  of  office  are  long,  the  recall  doubtless  gives 
to  the  voters  a  feeling  of  greater  security  against  possible  mis- 
government,  and  to  legislators  and  executives  a  feeling  of  more 
immediate  responsibility.  Apparently  it  must  be  regarded 
therefore  as  an  extraordinary  remedy  whose  chief  value  lies  in 
its  potential  rather  than  in  its  actual  use. 


CHAPTER  XI 

THE  STATE  JUDICIARY 

THE  constitutional  history  of  the  judicial  branch  of  the  state 
governments,  like  that  of  the  legislative  and  executive  branches, 
is  a  history  of  the  progress  of  democracy.  Like  that  of  the 
executive  branch,  it  is  also  a  history  of  the  growth  of  power. 
The  democratization  of  the  judiciary  profoundly  affected  the 
character  of  judicial  organization,  just  as  the  democratization 
of  the  executive  affected  the  character  of  executive  organiza- 
tion. The  growth  of  power  profoundly  affected  the  relations  of 
the  judiciary  with  the  coordinate  branches  of  government,  just 
as  the  growth  of  power  in  the  case  of  the  executive  affected  its 
relations  with  the  legislative  branch.  The  democratized  execu- 
tive ultimately  was  found  to  require  reconstruction  in  the  in- 
terest of  efficiency.  The  first  question  that  arises  in  connection 
with  the  work  of  the  courts  is  whether  there  also  any  reconstruc- 
tion is  required  in  the  interest  of  efficiency.  The  growth  of 
executive  power  at  the  expense  of  the  state  legislatures  was 
necessary  to  establish  a  better  balance  between  the  two  branches. 
Its  propriety  has  been  justified  by  the  result.  The  present  tend- 
ency in  the  development  of  the  state  executives  is  toward  a 
further  increase  of  executive  power  at  the  expense  of  the  legis- 
latures. The  second  question  that  arises  in  connection  with  the 
work  of  the  courts  is  whether  there  also  the  growth  of  power  was 
necessary  to  establish  a  better  balance  between  the  three 
branches,  in  other  words,  whether  the  propriety  of  the  redivision 
of  powers  has  been  justified  by  the  result.  With  a  view  to 
attempting  an  answer  to  these  questions  the  work  of  the  courts 
may  be  divided  into  three  classes:  (i)  the  administration  of 
justice  by  the  adjudication  of  ordinary  civil  and  criminal  causes ; 
(2)  the  enforcement  of  constitutional  limitations  upon  the  legis- 
latures by  the  exercise  of  the  power  of  judicial  review  ;  and  (3)  the 

345 


346        STATE  GOVERNMENT  IN  UNITED   STATES 

enforcement  of  both  constitutional  and  statutory  limitations 
upon  the  executive  by  the  same  means. 


THE  ADMINISTRATION  OF  JUSTICE 

The  original  organization  of  the  state  courts  was  partly  an  un- 
conscious development  of  colonial  institutions,  partly  a  conscious 
adaptation  of  those  of  contemporary  England.  But  colonial 
judicial  organization  was  the  most  defective  branch  of  colonial 
government,  and  the  English  model  at  the  time  of  the  Revolu- 
tion was  itself  badly  in  need  of  reform.  The  administration  of 
justice  in  the  American  colonies  had  been  by  no  means  clearly 
distinguished  from  other  branches  of  achninistration.  The 
supreme  court  in  the  chartered  colonies  was  the  governor  and 
his  court  of  assistants,  subject  in  important  cases  to  appeal  to 
the  general  court,  that  is,  to  the  representatives  of  the  freemen. 
The  grounds  for  appeal  from  the  decisions  of  the  ordinary  magis- 
trates were  ill-defined,  and  the  temptation  for  the  legislatures  to 
meddle  in  judicial  business  was  strong.  In  the  proprietary  and 
crown  colonies  the  governor  was  in  a  better  position  to  maintain 
the  supremacy  of  the  executive  in  judicial  affairs.  A  regular 
system  of  independent  courts  hardly  arose  until  the  eighteenth 
century.  Even  then  everyday  justice  was  administered  mainly 
by  local  magistrates.  These  magistrates,  usually  justices  of 
the  peace,  were  unlearned  in  the  English  common  law,  and  relied 
mainly  upon  their  own  common  sense.  After  the  Revolution 
came  the  real  reception  of  the  common  law  and  the  endeavor  to 
construct  a  systematic  judicial  system.  English  judicial  organi- 
zation, as  set  forth  in  the  Commentaries  of  Blackstone,  was 
archaic,  complicated,  and  arbitrary.  Certain  general  principles 
of  organization  were  discoverable,  however,  upon  which  the 
Fathers  builded  their  several  systems.  The  principal  features  of 
the  early  state  judicial  organizations  were :  —  (i)  local  peace 
magistrates  and  local  inferior  courts  for  petty  causes;  (2)  a 
central  court  of  general  jurisdiction  at  law  and  over  crimes, 
with  provision  for  local  trial  of  causes  at  circuit  and  review  of 
civil  trials  in  bank  in  the  central  court;  (3)  a  central  court  of 
equity,  in  which  causes  were  heard  in  one  place,  though  testi- 
mony might  be  taken  in  the  locality ;  and  (4)  a  supreme  court 


THE  STATE  JUDICIARY  347 

of  review.     Generally,  indeed,  the  second  and  third  courts  were 
merged.1 

The  development  of  the  state  judiciaries,  like  that  of  the  state 
governments  in  general,  was  until  recently  largely  molded  by 
the  needs  and  ideas  of  the  frontier.  Pioneer  communities  needed 
above  all  else  certainty,  quickness,  and  cheapness  in  the  adminis- 
tration of  justice.  Cheapness  was  necessary  because  the  frontier 
was  poor.  Quickness  was  necessary  because  the  frontier  was 
rough  and  impatient.  Certainty  was  necessary  because  the 
frontier  was  self-taught.  These  needs  directly  controlled  the 
development  of  judicial  institutions  in  the  pioneer  states  and  in- 
directly affected  judicial  institutions  in  all  the  states.  More 
recently,  the  growth  of  cities  and  the  increasing  complexity  of 
urban  life  has  subjected  judicial  institutions  to  new  tests.  The 
great  industrial  communities  need  more  nicety  and  refinement 
in  the  law,  more  expertness  in  the  judges,  and  a  higher  degree  of 
specialization  in  the  organization  of  courts  and  the  administra- 
tion of  justice.  The  influence  of  the  old  frontier  and  of  the 
new  social  and  industrial  order  upon  the  present  organization 
and  practical  working  of  the  state  courts  is  seen  alike  in  the  law 
itself,  in  the  organization  of  the  courts,  and  in  the  forms  of  pro- 
cedure. 

THE  DEVELOPMENT  OF  THE  LAW 

The  influence  of  the  frontier  upon  the  body  of  the  law  re- 
sulted in  a  rapid  renovation  of  the  English  common  law  into  an 
acceptable  American  system.  The  democratic  spirit  of  frontier 
life  was  incompatible  with  the  maintenance  of  the  English  tradi- 
tion, in  which  the  law  was  a  strange  and  inscrutable  thing,  and 
lawyers  a  class  apart  from  common  men.  Democracy  demanded 
a  system  of  law  such  that  every  man  might  be,  if  he  wished,  his 
own  lawyer.  The  social  and  economic  basis  of  frontier  life  was 
simple;  the  relationships  of  men  did  not  require  that  the  law 
should  be  refined.  The  conditions  of  life  as  well  as  the  spirit 
of  democracy  were  thus  favorable  to  a  revolution  in  law  as  well 
as  in  government.  As  it  happened,  the  year  of  the  American 
declaration  of  political  independence  of  England  was  also  a  year 

1  See  Roscoe  Pound,  "Organization  of  Courts,"  in  bulletin  vi,  Publications  of  the 
American  Judicature  Society,  pp.  11-12. 


348       STATE  GOVERNMENT  IN  UNITED  STATES 

of  declarations  of  independence  in  England  itself.  In  1 776  Adam 
Smith  published  his  epoch-making  treatise  on  the  Wealth  of 
Nations,  inaugurating  a  revolt  against  the  obsolescent  doctrines 
of  mercantilism.  In  the  same  year  Bentham  published  his 
Fragment  on  Government,  inaugurating  a  revolt  against  the 
anachronisms  of  the  English  common  law.  Both  Smith  and 
Bentham  were  pioneers  whom  the  people  of  the  states  could 
appreciate.  Bentham's  work  especially  made  a  deep  impression 
in  America.  This  impression  is  most  apparent  in  the  demand 
for  the  codification  of  American  law,  of  which  so  much  was 
heard  in  the  middle  of  the  nineteenth  century.  Codification, 
Bentham  argued,  would  assist  both  in  the  study  and  in  the  ad- 
ministration of  law.  It  would  express  the  whole  body  of  law  in 
the  fewest  possible  rules,  and  would  set  it  forth  in  a  logical  order 
and  hi  a  uniform  and  intelligible  terminology.  It  would  eliminate 
the  need  for  learned  commentaries  and  endless  reports  of  cases. 
These  claims  appealed  to  the  frontier  democracy.  To  it  codifi- 
cation meant  the  realization  of  the  dream  that  every  man  should 
be  his  own  lawyer,  and,  when  his  turn  came,  should  hold  judicial 
as  well  as  political  and  administrative  office.  In  short,  Ben- 
tham's theory  of  the  law  was  well  suited  to  the  American  frontier. 
Thus  the  reception  of  the  English  common  law  after  the  Revolu- 
tion was  closely  followed  by  the  reception  of  the  ideas  of  the 
English  law  reformers. 

The  influence  of  the  new  social  and  economic  order  has  been 
directly  contrary  to  that  of  the  old  frontier.  During  the  forma- 
tive period  of  American  law  the  influence  of  the  judges,  as 
pointed  out  by  De  Tocqueville,  was  very  great.  After  the  recep- 
tion of  the  common  law  all  legal  education  began,  and  much 
ended,  with  the  study  of  Blackstone.  In  each  jurisdiction  the 
judges  were  engaged  in  adapting  the  principles  of  the  common  law 
to  the  facts  of  American  life.  So  far  as  Americans  were  con- 
cerned, much  of  the  law  was  unwritten.  Courts  as  well  as 
people  were  engaged  in  pioneer  work.  Both  in  the  development 
of  the  unwritten  law,  and  in  the  interpretation  of  that  which 
was  written,  each  state  judiciary  was  equally  free  to  apply  the 
utilitarian  test  in  the  light  of  local  conditions.  Law  was  copi- 
ously made  or  as  people  often  preferred  to  say,  discovered,  by  the 
judges  themselves.  Under  any  system  of  judge-made  law  the 


THE  STATE  JUDICIARY  349 

force  of  precedent  becomes  great,  and  in  the  course  of  time  the 
law  itself  tends  to  become  rigid.  On  account  of  the  differences 
in  local  conditions  in  different  states  it  also  tended  to  become 
diversified.  Popular  recognition  of  these  tendencies  was  the 
signal  for  an  increase  of  legislative  activity  in  the  field  of  ordi- 
nary civil  and  criminal  law.  The  development  of  the  new 
social  and  economic  order  stimulated  the  demand  for  the  more 
rapid  readjustment  by  legislation  of  the  judge-made  rules  to 
the  changing  conditions.  The  growth  of  a  new  social  conscience 
brought  with  it  an  assumption  by  the  state  of  new  social  re- 
sponsibilities. It  was  less  generally  expected  that  each  man 
should  be  his  own  lawyer,  and  the  law  so  simple  that  any  man 
might  administer  it.  The  demand  for  codification  abated. 
Closer  business  relations  between  the  states  created  a  demand 
for  greater  uniformity  in  the  laws  of  the  states.  The  volume 
of  legislature-made  law  greatly  increased,  the  law  itself  be- 
came more  complex,  more  refined,  more  remote  from  the  com- 
prehension of  the  layman.  Justice  became  more  uncertain, 
slower,  and  more  expensive. 

THE  ORGANIZATION  OF  THE  COURTS 

The  influence  of  the  frontier  upon  the  organization  of  the 
courts  resulted  in  the  democratization  of  the  administration  of 
justice.  This  meant  more  than  the  mere  introduction  of  popular 
elections  of  judges.  It  meant  the  bringing  of  justice  directly  to 
every  man's  door.  In  a  country  of  long  distances,  in  a  period  of 
slow  communication  and  expensive  travel,  the  central  courts  of 
general  jurisdiction  caused  intolerable  expense  to  litigants. 
Popular  election  of  judges  was  accompanied  by  the  creation  of 
local  judicial  districts  and  fixed  local  courts,  the  erection  of 
intermediate  appellate  courts  between  the  trial  courts  and  the 
courts  of  final  review,  and  the  establishment  of  special  municipal 
courts  at  the  bottom.  The  details  of  judicial  organization  vary 
greatly  among  the  states,  yet  with  all  this  variety  of  detail  there 
is  upon  the  whole  a  distinct  and  characteristic  type.  This  gen- 
eral type  of  judicial  organization  contains  four  separate  sets  of 
courts.  First,  there  is  a  supreme  tribunal  composed  of  a  fixed 
number  of  judges  (varying  from  five  to  sixteen),  sitting  only  in 


350       STATE  GOVERNMENT  IN  UNITED  STATES 

that  tribunal,  and  exercising  mainly  or  exclusively  appellate 
jurisdiction.  Frequently,  also,  there  is  an  intermediate  court  of 
a  similar  kind,  interposed  between  the  highest  appellate  court 
and  the  superior  courts  of  first  instance,  thus  creating  to  a 
certain  extent  a  system  of  double  appeals.  Secondly,  there  is 
a  set  of  superior  courts  of  first  instance  with  a  general  jurisdiction 
at  law,  in  equity,  and  over  felonies  and  the  more  serious  mis- 
demeanors. Thirdly,  there  is  a  set  of  probate  courts,  usually 
one  in  each  county,  often  manned  by  laymen.  Fourthly, 
there  is  a  set  of  magistrate's  courts,  held  by  one  magistrate  for 
each  locality,  or  as  separate  courts  by  several  magistrates  for 
each  town  or  county.  They  have  usually  a  petty  civil  and 
criminal  jurisdiction,  and  power  to  bind  over  graver  offenders  to 
the  superior  court  of  first  instance.1  In  short,  the  democratiza- 
tion of  the  administration  of  justice  has  resulted  in  the  de- 
centralization and  disintegration  of  judicial  organization,  in 
the  same  manner,  though  not  to  the  same  extent,  as  the  democ- 
ratization of  state  administration  in  general  resulted  in  decen- 
tralization and  disintegration. 

The  influence  of  the  new  social  and  economic  order  upon  the 
organization  of  the  courts  has  as  yet  been  much  less  than  its 
influence  upon  the  law  itself.  Intermediate  appellate  courts 
are  still  being  interposed  between  trial  courts  and  those  of  final 
review,  and  municipal  courts  are  still  being  added  at  the  bottom. 
Juvenile  courts,  domestic  relations  courts,  night  courts,  land 
courts,  workmen's  compensation  commissions,  industrial  welfare 
commissions,  public  service  commissions,  all  armed  with  limited 
judicial  powers,  attest  the  growing  need  of  greater  specialization 
in  the  administration  of  justice.  Courts  and  judges  are  multi- 
plied, but  the  unification  of  the  judicial  systems  remains  neg- 
lected. Beyond  the  organization  of  centralized  municipal  courts 
in  a  few  cities,  notably  in  Chicago  and  Cleveland,  little  has  been 
done  to  reorganize  the  state  judiciaries.  The  various  district 
and  circuit  courts  in  the  states  are  separate  and  generally  in- 
dependent of  one  another.  In  most  states  judges  may  still 
remain  inadequately  employed  in  some  districts,  whilst  in  other 
districts  the  business  of  the  courts  may  be  grossly  in  arrears. 

The  most  significant  result  of  the  new  order  upon  the  or- 

1  See  Pound,  op.  cit.,  pp.  14-17. 


THE  STATE  JUDICIARY  351 

ganization  of  the  courts  is  the  growing  dissatisfaction  with  the 
popular  election  of  judges.  Popular  election  undoubtedly  made 
the  judiciary  more  independent  of  the  legislative  and  executive 
branches  of  government,  but  it  also  made  them  more  dependent 
upon  the  party  organizations.  In  local  judicial  districts,  espe- 
cially in  rural  districts,  popular  elections  seem  to  have  generally 
resulted  in  real  choices  by  the  voters.  But  this  has  not  generally 
been  the  result  in  the  larger  cities  and  districts,  and  in  the  elec- 
tion of  judges  by  the  voters  of  a  whole  state.  In  such  cases  the 
voters  may  elect,  but  the  actual  selection  is  likely  to  be  done  by 
others.  In  most  states,  while  the  delegate  convention  system  of 
party  organization  lasted,  the  actual  selection  probably  rested 
with  the  party  leaders.  In  some  states  special  arrangements  were 
established  by  custom.  Thus,  in  several  states  nominations  for  the 
more  important  judicial  offices  were  made  by  the  lawyers  of  the 
state  at  special  "bar"  primaries,  and  were  commonly  accepted  by 
the  major  party  leaders.  In  many  states  it  was  customary  for 
both  parties  to  renominate  retiring  judges,  regardless  of  their  party 
affiliation.  On  the  other  hand,  not  infrequently  judicial  nomina- 
tions were  openly  disposed  of  by  party  leaders  for  partisan  or 
personal  ends,  and  quite  generally  elevation  to  the  bench  was 
possible  only  for  those  who  served  the  regular  apprenticeship  in 
the  party  organization.  The  direct  primary  brought  confusion 
to  all  these  arrangements.  The  importance  of  excluding  the 
judiciary  from  the  ordinary  partisan  primary  was  quickly  realized. 
As  has  been  pointed  out,  several  states  have  already  established 
special  non-partisan  primaries  for  the  nomination  of  judges,  and 
provided  special  non-partisan  ballots  for  use  in  judicial  elections. 
The  most  efficient  state  judiciaries  are  those  of  which  the 
judges  are  not  elected  by  the  people.  In  Massachusetts  and 
New  Jersey,  for  example,  where  judges  are  appointed  by  the 
governor  and  hold  office  during  good  behavior,  there  is  less 
criticism  of  the  work  of  the  courts  than  in  New  York,  where 
they  are  elected  by  the  people.  The  prestige  of  the  courts,  as 
reflected  in  the  authority  of  judge-made  law,  seems  on  the  whole 
to  have  been  higher  prior  to  1850  than  subsequently  in  many  of 
the  states  which  then  introduced  popular  elections.1  It  is  the 

1  See  Preliminary  Report  on  Efficiency  in  the  Administration  of  Justice,  prepared 
by  Charles  W.  Eliot,  Louis  D.  Brandcis,  Moorficld  Storey,  Adolph  J.  Rodenbeck, 
and  Roscoe  Pound  for  the  National  Economic  League,  pp.  8-12. 


352        STATE  GOVERNMENT  IN  UNITED  STATES 

political  power  of  the  courts,  not  their  efficiency  in  the  adminis- 
tration of  justice,  that  has  been  enhanced  by  popular  elections. 
In  the  administration  of  justice,  as  in  other  branches  of  state 
administration,  there  is  a  growing  need  in  most  states  for  the 
employment  of  specialists  and  experts,  and  hence  for  greater 
security  of  tenure,  more  adequate  compensation,  more  centralized 
and  better  integrated  organization.  How  such  reorganization 
shall  be  accomplished,  without  diminishing  popular  control  of 
those  courts  which  exercise  important  political  functions,  is  a 
question  which,  especially  since  1912,  has  been  receiving  in- 
creased attention. 


THE  FORMS  OF  PROCEDURE 

The  influence  of  the  frontier  upon  the  forms  of  procedure 
resulted  in  the  limitation  of  judicial  powers  to  regulate  the 
business  of  the  courts.  The  conduct  of  trials,  especially,  was 
hedged  about  with  close  restrictions.  A  strong  tendency  de- 
veloped to  convert  the  trial  judge  into  a  mere  umpire,  whose 
function  it  should  be  to  hold  an  even  balance  between  the  con- 
tending parties,  that  is,  between  the  lawyers  for  the  parties.  For 
example,  serious  limitations  were  placed  upon  the  power  of  the 
presiding  judge  to  charge  the  jury.  Often  the  judge  was  for- 
bidden to  comment  on  the  evidence,  or  was  required  to  reduce 
his  instructions  to  writing,  or  permitted  to  give  instructions  only 
at  the  request  of  counsel.  Indeed,  in  a  very  few  states,  the 
presiding  judge  was  deprived  of  all  power  to  control  the  conduct 
of  cases  by  counsel.  This  tendency  to  dethrone  the  trial  judge 
and  exalt  the  lawyers  and  jury  had  existed  from  the  time  of  the 
Revolution,  and  by  1850  was  the  dominant  tendency  in  most 
states.  In  some  states  the  juries  were  made  judges  of  the  law 
as  well  as  the  facts  at  issue  in  a  cause.  Elsewhere  the  judges 
were  held  to  the  strictest  responsibility  for  the  correct  deter- 
mination of  questions  of  law  arising  in  the  course  of  litigation. 
Appeals  were  freely  allowed  whenever  errors  were  alleged  to  occur 
in  the  rulings  of  the  trial  judge,  and  reversal  by  the  court  of 
appeal  of  a  ruling  by  a  trial  judge  was  made  sufficient  cause  for  a 
new  trial,  even  if  the  merits  of  the  case  were  not  affected  by  the 
ruling.  Judicial  procedure  became  overladen  with  technicali- 


THE  STATE  JUDICIARY  353 

ties,  and  the  legislatures  fell  into  the  habit  of  constantly  amend- 
ing the  rules  of  procedure,  even  at  the  behest  of  litigants  seeking 
an  advantage  in  particular  cases.  The  codification  of  the  rules 
of  procedure  should  have  prevented  this  confusion,  but  the  legis- 
latures in  states  where  codes  were  adopted  could  not  refrain  from 
tinkering  them.  In  New  York,  the  code  of  civil  procedure 
adopted  in  1848  was  so  altered  by  amendment  that  a  new  code 
had  to  be  adopted  in  1876.  The  second  code  contained  between 
three  and  four  thousand  provisions,  and  has  been  amended  nearly 
five  hundred  times  in  the  last  ten  years.  In  short,  the  regulation 
of  judicial  procedure  by  the  state  legislatures  was  perhaps  a 
logical  result  of  the  spirit  of  the  frontier,  but  it  tended  to  defeat 
its  own  object,  for  it  tended  to  make  justice  less  certain,  less 
speedy,  and  more  costly. 

The  influence  of  the  new  social  and  economic  order  upon  the 
regulation  of  judicial  procedure  has  been  no  greater,  as  yet,  than 
upon  the  organization  of  the  courts.  There  is  still  too  much 
legislation  concerning  the  details  of  procedure.  There  is  still  a 
tendency  to  treat  the  rules  of  practice  as  giving  to  parties  pro- 
cedural rights  which  they  may  vindicate  through  appeal,  al- 
though their  substantive  rights  are  not  affected.  There  is  still 
a  tendency  for  courts  of  appeal  to  try  cases  upon  the  letter  of 
the  record  instead  of  upon  the  real  facts.  There  is  still  an  over- 
emphasis of  formal  issues  instead  of  essential  issues  in  litigation, 
of  the  technicalities  of  procedure  instead  of  the  merits  of  con- 
troversies. There  is  still  too  much  appellate  procedure,  and  in 
general  too  many  trials  and  retrials.1  Such  a  system  affords 
too  much  advantage  to  the  litigant  with  the  shrewdest  counsel 
and  the  longest  purse.  Imperfections  of  procedure  contribute 
to  inefficiency  in  the  administration  of  justice  to  a  very  unequal 
degree  in  different  states,  for  there  is  the  greatest  diversity  of 
procedure  in  the  different  states.  ' '  Jurisdictions  whose  procedure 
is  admirable  in  some  respects  are  very  backward  in  other  respects. 
But  few  generalizations  are  possible.  ...  In  other  words, 
while  there  are  general  evils  which  exist  throughout  the  United 
States,  the  problem  of  procedural  reform  is  largely  local,  and 
must  be  studied  specially  with  reference  to  the  conditions  that 
obtain  in  each  state." 2  Several  states  have  obtained  relief 

1  See  Preliminary  Report,  op.  cii.,  pp.  i&-ag.  *  Loc.  tit.,  p.  18. 

2A 


354       STATE  GOVERNMENT  IN  UNITED  STATES 

from  the  burden  of  inefficient  judicial  procedure  by  granting  to 
the  courts  themselves  the  power  to  prescribe  their  own  procedure. 
This  power  has  been  used  to  make  procedure  much  more  simple 
and  direct.1 

The  most  significant  result  of  the  new  order  upon  the  regula- 
tion of  judicial  procedure  is  the  growing  dissatisfaction  with  the 
traditional  system  of  trial  by  jury.  De  Tocqueville,  as  has  been 
shown,  and  all  other  early  observers,  reported  that  the  jury 
system  worked  well.  The  principal  difficulty  in  pioneer  com- 
munities lay  in  procuring  the  requisite  number  of  jurors.  A 
majority  of  the  states  consequently  made  provision  for  reducing 
the  number  required  for  the  petty  jury  in  certain  courts  or  classes 
of  cases.2  A  lesser  number  have  limited  or  dispensed  with  the 
use  of  the  grand  jury.3  But  more  recently  there  has  been  evi- 
dence of  loss  of  confidence  in  the  juries.  In  civil  cases  arising  out 
of  complicated  business  relations  the  judgment  of  ordinary  juries 
is  distrusted.  There  is  a  pronounced  tendency  to  waive  the 
right  of  trial  by  jury  in  such  cases  and  to  refer  the  determination 
of  facts  to  a  referee  or  master,  who  reports  his  findings  to  the 
court.  Most  significant  of  all,  there  is  a  tendency  to  do  away 
with  the  requirement  of  unanimity  in  civil  trials.  A  third  of 
the  states  have  provided  that  civil  juries  which  fail  to  agree  upon 
a  unanimous  verdict  within  a  reasonable  time  may  return  a 
verdict  by  a  five-sixths,  or  a  three-fourths,  or  even  by  a  two-thirds 
vote.  In  criminal  cases,  also,  there  is  a  tendency  to  distrust 
the  judgment  of  ordinary  juries.  This  is  reflected  in  the  abuse 
of  the  right  to  challenge  prospective  jurors,  and  in  the  difficulties 
and  delays  that  arise  in  the  empanelling  of  juries  in  important 
cases.  The  growing  use  of  equitable  remedies  in  certain  classes 

1  Notably  in  Colorado,  Connecticut,  and  New  Jersey.    The  best  example  of  what 
can  be  done  by  the  courts  themselves  to  simplify  judicial  procedure,  when  granted 
the  power,  is  doubtless  the  adoption  by  the  Supreme  Court  of  the  United  States  of 
the  rules  of  equity  procedure  now  in  effect. 

2  The  first  recorded  case  since  the  Revolution  in  which  a  statute  was  declared 
unconstitutional  was  that  of  Holmes  v.  Walton,  decided  in  New  Jersey  in  1780. 
The  ground  for  the  decision  was  that  the  legislature  had  no  right  to  reduce  the  num- 
ber of  the  jury  from  twelve,  as  fixed  by  the  common  law,  to  six,  as  contemplated 
by  the  legislature. 

3  The  right  of  the  people  of  a  state  by  constitutional  amendment  to  dispense  with 
indictment  by  grand  jury  was  affirmed  by  the  United  States  Supreme  Court  in  a 
case  involving  the  constitutionality  of  such  a  provision  in  the  California  constitu- 
tion of  1879  (Hurtado  v.  California,  no  U.  S.,  516). 


THE  STATE  JUDICIARY  355 

of  cases,  notably  those  arising  from  labor  disputes  in  which 
strikers  threaten  to  damage  the  property  of  their  employers,  in 
effect  reduces  the  value  of  the  jury  system  in  criminal  cases. 
Judges  may  imprison  strikers  for  contempt  of  court  without 
trial  by  jury,  although  the  alleged  offense  for  which  the  striker 
is  adjudged  to  be  in  contempt  may  be  a  crime.  Thus  he  is  in 
effect  punished  for  crime  without  the  benefit  of  a  jury  trial.  In 
short,  the  democratization  of  the  administration  of  justice  in  the 
middle  of  the  nineteenth  century  tended  to  exalt  the  jury,  and 
especially  the  lawyers,  at  the  expense  of  the  judge,  but  the  in- 
fluence of  the  new  order  seems  to  be  in  the  opposite  direction. 
The  present  problems  in  the  administration  of  justice,  as  in 
other  branches  of  state  administration,  are  the  separation  of 
politics  from  administration  and  the  reconciliation  of  democracy 
and  efficiency. 


JUDICIAL  REVIEW  OF  THE  CONSTITUTIONALITY  OF 
LEGISLATION 

The  power  of  the  courts  to  review  the  constitutionality  of 
legislation  and  to  refuse  to  enforce  that  which  they  declare  un- 
constitutional is  formally  a  judicial  power.  It  springs  from  the 
duty  of  the  courts  to  determine  what  law  applies  in  cases  where 
there  is  a  conflict  of  law.  But  cases  involving  conflict  between 
statutes  and  the  law  of  the  constitution  are  different  from  ordi- 
nary cases  of  conflict  of  laws.  Expounding  a  constitution  is  a 
different  kind  of  work  from  construing  a  statute.  It  is  es- 
sentially political  in  character.  To  the  student  of  politics,  as  dis- 
tinct from  administration,  the  exercise  of  the  power  of  judicial 
review  and  veto  is  the  most  important  part  of  the  work  of  the 
courts. 

There  are  two  sources  of  the  veto  power  exercised  by  the  state 
courts.  First,  it  is  implied,  as  already  shown,  in  the  very  nature 
of  the  system  of  constitutional  government  in  the  states. 
Secondly,  it  is  expressly  conferred  by  the  Federal  Constitution. 
The  implied  power  of  judicial  veto  is  the  power  merely  to  refuse 
to  enforce  state  legislative  enactments  in  conflict  with  the  state 
constitution.  The  expressed  power  is  the  power  to  refuse  to 
enforce  any  state  enactment,  whether  in  the  form  of  an  ordinary 


356       STATE  GOVERNMENT  IN  UNITED  STATES 

act  of  legislation  or  in  that  of  a  clause  of  the  state  constitution, 
in  conflict  with  the  Constitution  of  the  United  States,  or  with  a 
law  made  in  pursuance  thereof,  or  with  a  treaty  made  under 
the  authority  of  the  United  States.  In  the  former  class  of  cases 
the  decision  of  the  highest  court  of  the  state  is  final.  In  the 
latter  the  decision  of  the  Supreme  Court  of  the  United  States 
alone  is  final.  Prior  to  1915,  however,  there  was  no  provision 
for  appeal  to  the  United  States  Supreme  Court  from  decisions 
of  state  courts  in  cases  involving  alleged  conflict  between  state 
legislation  and  the  supreme  law  of  the  land,  unless  the  state 
courts  refused  to  protect  the  rights  claimed  under  the  supreme 
law.  Since  1915  it  has  been  possible  to  procure  from  the  United 
States  Supreme  Court  a  final  decision  in  all  cases  involving  alleged 
conflicts  between  the  supreme  law  and  the  constitutions  and  laws 
of  the  states.  The  exercise  of  the  power  of  judicial  veto  in  the 
government  of  the  states,  therefore,  falls  under  two  heads :  (i) 
the  veto  by  the  state  courts  of  ordinary  state  legislation  in  con- 
flict with  a  state  constitution  or  of  any  state  legislation  in  conflict 
with  the  supreme  law  of  the  land ;  and  (2)  the  veto  by  the  federal 
courts  of  state  legislation,  statutory  or  constitutional,  in  conflict 
with  the  supreme  law  of  the  land. 

The  power  of  judicial  veto  was  at  first  exercised  infrequently 
and  with  great  caution.  Haines,  in  his  work,  The  American 
Doctrine  of  Judicial  Supremacy,  lists  only  eighteen  cases  in 
which  statutes  were  rendered  null  and  void  by  the  refusal  of  the 
state  courts  to  enforce  them  during  the  forty  odd  years  from  1776 
to  iSig.1  This  list  is  not  complete,  but  it  indicates  accurately 
enough  the  extent  to  which  the  power  was  used  at  that  period. 
Down  to  the  Civil  War  the  practice  of  invalidating  legislative 
acts  seems  to  have  been  confined  mainly  to  a  few  states,  and  to 
have  been  infrequently  indulged  in  even  in  those  few.2  There- 
after the  practice  rapidly  became  more  common.  During  the 
six  years  from  1903  to  1908,  inclusive,  nearly  four  hundred 
state  laws  were  declared  unconstitutional  by  the  state  courts.8 

1  See  Haines,  op.  cil.,  p.  228. 

2  See  E.  S.  Corwin,  "The  Establishment  of  Judicial  Review,"  9  Michigan  Law 
Revieio,  p.  314. 

3  See  New  York  State  Library  Legislative  Bulletins,  1903-1908,  summarized 
in  Haines,  op.  cit.,  p.  307. 


THE  STATE  JUDICIARY  357 

Making  due  allowances  for  the  increase  in  the  number  of  states 
and  in  the  volume  of  state  legislation,  it  is  evident  that  the  im- 
portance of  the  veto  power  possessed  by  the  state  courts  has 
greatly  increased.  The  power  to  veto  state  legislation  originally 
possessed  by  the  federal  courts,  like  that  originally  possessed  by 
the  state  courts,  was  exercised  sparingly.  Only  thirty-seven 
state  acts  were  declared  unconstitutional  by  the  federal  courts 
from  their  organization  to  the  Civil  War.  Since  then  the  federal 
courts,  like  the  state  courts,  have  exercised  the  judicial  veto  much 
more  freely.  From  1860  to  1912  the  federal  courts  declared  one 
hundred  and  eighty  state  acts  unconstitutional.1 

The  more  frequent  use  of  the  judicial  veto  since  the  middle  of 
the  nineteenth  century  can  be  partly  explained  by  the  constitu- 
tional changes  which  took  place  at  that  time.  In  New  York, 
for  example,  285  acts  or  parts  of  acts  had  been  declared  unconsti- 
tutional by  the  state  courts  down  to  the  year  1912.  Of  these 
barely  one  per  cent  were  enacted  under  the  original  constitution 
of  1777,  and  not  much  over  two  per  cent  under  the  second  con- 
stitution of  1812.  Of  the  balance  about  three-fifths  were  enacted 
under  the  constitution  of  1846,  and  about  two-fifths  under  the 
constitution  of  i894.2  The  exercise  of  the  judicial  veto  by  the 
New  York  courts  falls  almost  entirely  in  the  period  since  the 
adoption  of  the  popular  election  of  judges  and  of  stricter  con- 
stitutional limitations  upon  legislative  powers  and  procedure. 
The  same  is  true  of  most  of  the  states.  The  more  frequent  use 
of  the  judicial  veto  by  the  federal  courts  since  the  Civil  War 
can  likewise  be  partly  explained  by  the  effects  of  constitutional 
changes.  The  adoption  of  the  thirteenth,  fourteenth,  and 
fifteenth  amendments  to  the  Federal  Constitution  greatly  in- 
creased the  jurisdiction  of  the  federal  courts  over  state  legisla- 
tion. 

The  increased  use  of  the  judicial  veto  since  the  Civil  War 
cannot  be  wholly  explained  by  changes  in  the  written  constitu- 
tions of  the  states  and  nation.  The  adoption  of  the  reconstruc- 
tion amendments  did  not  greatly  increase  the  constitutional 
limitations  upon  acts  of  Congress.  Yet  the  more  frequent  use 

1  See  B.  F.  Moore,  The  Supreme  Court  and  Unconstitutional  Legislation,  in  Colum- 
bia University  Studies  in  History,  Economics,  and  Public  Law,  liv,  no.  2,  appendix  iii. 
1  See  H.  A.  Davis,  The  Judicial  Veto,  appendix. 


358       STATE  GOVERNMENT  IN  UNITED  STATES 

of  the  judicial  veto  against  congressional  legislation  in  the  last 
half  century  is  as  marked  as  its  more  frequent  use  against  the 
legislation  of  the  states.  Prior  to  1860  only  three  acts  of  Con- 
gress had  been  declared  unconstitutional.  Between  1860  and 
1912  no  less  than  thirty  such  acts  were  vetoed  by  the  federal 
courts.  The  federal  courts,  moreover,  have  no  greater  jurisdic- 
tion over  state  legislation  in  one  state  than  in  another.  From 
the  beginning  down  to  1912  they  declared  unconstitutional  only 
two  acts  of  the  state  of  Massachusetts,  only  four  acts  of  the  other 
five  New  England  states,  two  New  Jersey  acts,  and  none  at  all 
of  Delaware.  Yet  during  the  same  period  they  declared  uncon- 
stitutional twelve  Tennessee  acts,  thirteen  Missouri  acts,  sixteen 
each  of  the  states  of  Louisiana  and  New  York,  and  seventeen  of 
Pennsylvania.1 

There  can  be  no  doubt  that,  along  with  the  increase  in  the 
independence  of  the  state  judiciary  and  the  enlargement  of  its 
jurisdiction  over  state  legislation,  there  came  a  change  in  public 
sentiment  towards  the  judiciary  generally.  The  people  began 
to  look  more  confidently  to  the  courts  for  protection  against 
abuses  of  power  by  the  legislatures.  The  courts  were  encouraged 
to  use  their  powers  more  vigorously.  This  tendency  was  most 
marked  in  the  states  where  the  courts  were  originally  weakest 
and  where  the  legislatures  had  been  guilty  of  the  greatest  abuse 
of  power.  There  was  also  greater  need  to  use  the  judicial  veto 
against  the  legislation  of  such  states.  But  the  change  in  public 
sentiment  occurred  everywhere.  In  other  words,  the  political 
importance  of  the  state  courts  was  enhanced  directly  by  popular 
distrust  of  the  state  legislatures,  as  well  as  indirectly  through 
the  increase  of  constitutional  limitations  upon  legislative  powers 
and  procedure.  The  federal  courts  shared  with  the  courts  of 
the  states  the  growing  sense  of  power,  despite  the  loss  of  prestige 
resulting  from  the  Dred  Scott  and  legal  tender  decisions. 


EFFECT  OF  THE  JUDICIAL  VETO 

The  effect  of  increased  jurisdiction  over  state  legislation  and 
of  growing  popular  favor  is  reflected  in  the  character  of  judicial 

1  See  Moore,  op.  cit.,  appendix  iv. 


THE  STATE  JUDICIARY  359 

vetoes.  Of  the  eighteen  acts  listed  by  Haines  which  were  de- 
clared unconstitutional  by  the  state  courts  prior  to  1820,  a 
majority  related  to  the  organization  or  duties  of  the  courts, 
judicial  procedure,  or  trial  by  jury.  Only  one  act  was  declared 
unconstitutional  on  account  of  defective  legislative  procedure  in 
its  enactment.  In  other  words,  the  judicial  veto  was  originally 
employed  by  the  state  courts  principally  to  protect  their  own 
constitutional  rights.  Since  1860  a  great  change  has  taken  place 
in  the  nature  of  the  legislation  most  frequently  vetoed  by  the 
courts.  Of  the  four  hundred  acts  declared  unconstitutional  by 
the  state  and  federal l  courts  in  the  years  1903-1908,  fifty-five 
were  vetoed  because  the  subjects  of  the  acts  were  not  clearly 
expressed  in  their  titles,  fifty-three  on  the  ground  that  they  were 
special  or  class  legislation,  when  their  objects  could  have  been 
attained  under  existing  general  acts  or  should  have  been  secured 
by  new  general  acts,  forty-nine  because,  if  enforced,  they  would 
have  deprived  persons  of  liberty  or  property  without  due  process 
of  law,  and  thirty-six  because  they  denied  the  equal  protection 
of  the  laws.  That  is  to  say,  nearly  half  the  total  number  of 
acts  vetoed  by  the  courts  were  declared  unconstitutional  on 
account  of  defective  legislative  procedure  or  because,  if  en- 
forced, they  would  have  accomplished  their  purpose  "without  due 
process  of  law."  Only  thirty-two  of  these  acts  were  vetoed  by 
the  courts  on  account  of  interference  with  the  constitutional 
rights  of  the  judiciary.2  In  short,  whilst  the  state  courts  orig- 
inally used  the  judicial  veto  principally  to  protect  their  own 
constitutional  rights,  they  now  use  it  largely  to  condemn  the 
fruits  of  incorrect  legislative  procedure  and  to  maintain  the  integ- 
rity of  "due  process  of  law."  Originally  the  state  courts  were 
on  the  defensive.  Now  the  effect  of  the  judicial  veto  in  the 
states  is  to  put  the  legislatures  on  the  defensive. 

A  similar  change  has  occurred  in  the  use  of  the  judicial  veto  by 
the  federal  courts.  All  the  cases  in  which  provisions  of  state 
constitutions  and  statutes,  territorial  statutes,  and  municipal 
ordinances  have  been  vetoed  by  the  Supreme  Court  of  the  United 
States  down  to  the  year  1912  have  been  classified  according  to 
the  clauses  of  the  Federal  Constitution  with  which  these  enact- 

1  All  but  28  of  these  vetoes  were  by  the  state  courts. 
*  See  HaJncs,  op.  cil.,  p.  307. 


360       STATE  GOVERNMENT  IN  UNITED  STATES 

ments  came  in  conflict.1  From  this  classification  it  appears 
that  nearly  one-third  of  all  these  enactments  were  declared  un- 
constitutional on  the  ground  that  they  conflicted  with  that 
clause  of  the  Federal  Constitution  which  grants  to  the  federal 
government  the  power  to  regulate  interstate  and  foreign  com- 
merce, and  that  another  third,  nearly,  conflicted  with  the  provi- 
sion forbidding  any  state  to  pass  any  law  impairing  the  obliga- 
tion of  contracts.  About  one-tenth  of  the  vetoed  enactments 
conflicted  with  the  clause  of  the  fourteenth  amendment  forbid- 
ding any  state  to  deprive  any  person  of  life,  liberty,  or  property 
without  due  process  of  law,  or  to  deny  to  any  person  the  equal 
protection  of  the  laws.  There  was  no  considerable  number  of 
conflicts  with  any  other  single  provision  of  the  Federal  Constitu- 
tion. Prior  to  the  Civil  War  the  greater  portion  of  the  state 
laws  declared  unconstitutional  by  the  federal  courts  conflicted 
with  the  commerce  clause  of  the  Federal  Constitution,  or  tended 
in  some  other  way  to  impair  the  supremacy  of  the  federal  govern- 
ment within  its  constitutional  sphere.  Since  then  an  increasing 
portion  have  conflicted  with  the  clauses  limiting  the  supremacy  of 
the  state  governments  in  their  constitutional  spheres.  The  "  due 
process  of  law"  clause  has  become  particularly  important  during 
the  last  quarter  century.  In  other  words,  the  judicial  veto  was 
originally  used  by  the  federal  courts  against  state  legislation 
primarily  in  order  to  maintain  the  supremacy  of  the  federal  govern- 
ment in  the  conduct  of  national  affairs.  Latterly  it  has  tended 
to  be  used  more  and  more  to  enforce  federal  constitutional 
limitations  upon  the  conduct  of  local  affairs  by  the  state  govern- 
ments. 

DUE  PROCESS  OF  LAW 

Both  the  more  frequent  use  of  the  judicial  veto  by  the  state 
courts  and  the  increasing  interference  in  the  domestic  affairs 
of  the  states  by  the  federal  courts  have  been  greatly  facilitated  by 
the  construction  which  has  been  placed  upon  the  "due  process  of 
law"  clauses  in  both  state  and  federal  constitutions.  Prior  to 
the  Civil  War  due  process  of  law  in  the  states  was  guaranteed  only 
by  the  state  constitutions,  and  the  guarantee,  as  already  pointed 

1  See  Moore,  op.  tit.,  appendix  v. 


THE  STATE  JUDICIARY  361 

out,  was  commonly  understood  to  mean  a  guarantee  of  the  right 
to  law.1 

The  principal  case,  prior  to  the  Civil  War,  in  which  the  term 
was  interpreted  more  broadly  arose  out  of  the  enforcement  of 
the  New  York  state-wide  prohibitory  liquor  law  of  i855-2  In 
this  case  a  law  which  prohibited  the  sale  of  intoxicants  after 
a  certain  date  was  declared  unconstitutional,  on  the  ground  that 
in  effect  it  deprived  those  who  owned  intoxicants  at  that  time  of 
their  property  without  due  process  of  law.  The  court's  objection 
to  the  law  was  caused,  not  only  by  the  procedure  prescribed  for 
the  confiscation  of  intoxicants  offered  for  sale  after  the  law  went 
into  effect,  but  also  by  the  substance  of  the  law  itself.  In  the 
case  of  intoxicants  in  the  possession  of  inhabitants  of  the  state 
prior  to  the  date  when  the  act  became  effective  and  offered  for 
sale  thereafter,  the  court  declared  their  confiscation  by  any 
procedure  whatever  to  be  unconstitutional.  In  general,  how- 
ever, the  "due  process"  clause  was  not  at  that  time  supposed 
to  limit  the  power  of  the  legislature  in  the  enactment  of  sub- 
stantive law.  Its  purpose  was  believed  to  be  to  secure  a  govern- 
ment of  law  rather  than  of  men,  not  to  control  the  content  of 
the  law.  When  the  federal  courts  were  first  charged  by  the 
fourteenth  amendment  with  the  duty  of  enforcing  due  process 
of  law  upon  the  state  governments,  they  still  adhered  to  this 
view.3 

It  was  inevitable  that  the  courts,  both  state  and  federal,  when 
once  they  began  to  feel  their  power,  should  take  a  more  aggressive 
view  of  their  duty  under  the  "due  process"  clause.  If  ours  is  to 
be  a  government  of  law,  not  of  men,  it  follows  that  members  of 
a  state  legislature  are  not  free  to  act  arbitrarily  and  oppressively 
any  more  than  other  men  who  may  happen  to  hold  public  office. 
In  other  words,  they  may  not  accomplish  an  arbitrary  and  un- 
reasonable purpose  by  expressing  it  in  the  form  of  a  statute 
and  calling  it  law.  Should  a  legislature  enact  such  a  law,  it 
would  be  the  duty  of  the  court  to  interpose  with  a  judicial  veto. 
The  original  Massachusetts  constitution,  for  example,  explicitly 

1  See  ante,  ch.  iii.  Cf.  E.  S.  Convin,  "Due  Process  of  Law  before  the  Civil 
War,"  24  Harvard  Law  Review,  p.  375. 

*  Wynchamer  v.  The  People,  13  N.  Y.,  378  (1856). 
8  See  the  Slaughter-House  Cases,  16  Wall,  36  (1873). 


362       STATE  GOVERNMENT  IN  UNITED  STATES 

provides  that  the  law-making  power  of  the  legislature  extends  only 
to  the  enactment  of  "wholesome  and  reasonable"  measures. 
The  same  limitation  is  implied  in  all  the  state  constitutions. 
Thus  the  constitutional  guarantee  of  due  process  of  law  comes  to 
mean  a  guarantee  of  reasonable  law,  or  what  in  the  opinion  of  the 
court  is  reasonable  law.  Doubtless,  the  authority  of  a  court  to 
declare  a  statute  unconstitutional  on  the  ground  of  unreasonable- 
ness is  a  delicate  one,  not  to  be  exercised  by  inferior  courts,  nor 
by  any  court  unless  the  unreasonableness  of  the  act  is  clear 
beyond  a  doubt.  Indeed,  the  very  existence  of  such  power  was 
long  denied  by  leading  writers  on  constitutional  law.1  The 
attitude  of  the  state  and  federal  courts,  however,  toward  much 
recent  legislation  relating  to  social  and  industrial  conditions 
cannot  be  explained  except  upon  the  theory  that  such  a  power 
exists.  But  it  is  clear  that  the  courts  themselves  in  the  exercise 
of  this  power  are  also  subject  to  the  rule  of  reason,  and  that 
between  courts  and  legislature  the  ultimate  judges  must  be  the 
people. 

THE  RULE  OF  REASON 

The  first  important  case  in  which  the  rule  of  reason  was  applied 
by  the  federal  courts  against  state  legislation  was  decided  the 
year  after  the  decision  of  the  Slaughter-House  cases.2  In  this 
case  the  United  States  Supreme  Court  was  asked  to  enforce  the 
payment  of  interest  due  on  bonds  issued  by  a  municipal  corpora- 
tion under  a  state  law  authorizing  cities  and  counties  "to  issue 
bonds  for  the  purpose  of  building  bridges,  aiding  railroads,  water- 
power,  or  other  works  of  internal  improvement."  The  bonds  in 
question  were  issued  for  the  purpose  of  aiding  a  company  to 
establish  an  iron-bridge  works.  It  was  conceded  that  the  steps 
required  by  the  act  prerequisite  to  the  issuing  of  the  bonds  were 
regular,  and  that  the  language  of  the  statute  was  sufficient  to 
justify  the  action  of  the  city  authorities,  if  the  statute  itself  was 
within  the  constitutional  competency  of  the  legislature.  The 

1  See  Thomas  M.  Cooley,  A  Treatise  on  the  Constitutional  Limitations  whkh  rest 
upon  the  Legislative  Power  of  the  States  of  the  American  Union  (yth  ed.),  ch.  vii, 
"The  Circumstances  under  which  a  Legislative  Act  may  be  declared  Unconstitu- 
tional." 

1  Loan  Association  v.  Topeka,  20  Wall,  655  (1874). 


THE  STATE  JUDICIARY  363 

Supreme  Court  held  that  "the  theory  of  our  governments,  state 
and  federal,  is  opposed  to  the  deposit  of  unlimited  power  any- 
where. .  .  .  There  are  limitations  on  such  power  which  grow 
out  of  the  essential  nature  of  all  free  governments,  implied 
reservations  of  individual  rights,  without  which  the  social 
compact  could  not  exist,  and  which  are  respected  by  all 
governments  entitled  to  the  name.  .  .  .  There  can  be  no  lawful 
tax  which  is  not  levied  for  a  public  purpose."  In  this  case  the 
court  believed  that  a  tax  levied  for  the  purpose  of  meeting  the 
interest  charges  on  bonds  issued  in  aid  of  a  private  iron-bridge 
works  was  not  levied  for  a  public  purpose.  In  effect  by  this 
decision  the  right  of  the  city  to  repudiate  the  bonds  was  sustained. 
In  a  dissenting  opinion  a  minority  of  the  court  declared  that 
"  courts  cannot  nullify  an  act  of  the  state  legislature  on  the  vague 
ground  that  they  think  it  opposed  to  a  general  latent  spirit  sup- 
posed to  pervade  or  underlie  the  constitution,  where  neither  the 
terms  nor  the  implications  of  the  instrument  disclose  any  such 
restriction.  .  .  .  Such  a  power  is  denied  to  the  courts  because 
to  concede  it  would  be  to  make  the  courts  sovereign  over  both 
the  constitution  and  the  people,  and  convert  the  government  into 
a  judicial  despotism.  .  .  .  Unwise  laws  and  such  as  are  highly 
inexpedient  and  unjust  are  frequently  passed  by  legislative  bodies, 
but  there  is  no  power  vested  in  the  circuit  court  to  determine 
that  any  law  passed  by  a  state  legislature  is  void,  if  it  is  not 
repugnant  to  their  own  constitution  nor  the  constitution  of  the 
United  States."  The  opinion  of  the  minority  was  consistent 
with  the  theory  of  judicial  review  generally  acted  on  by  the  courts 
prior  to  that  time,  but  it  was  the  opinion  of  the  majority  that  has 
since  then  prevailed. 

Another  step  in  the  judicial  application  of  the  rule  of  reason 
was  taken  in  connection  with  the  regulation  of  railroads  and  other 
so-called  "businesses  affected  with  a  public  interest."  In  the 
leading  case  l  the  United  States  Supreme  Court  noted  the  con- 
tention "that  the  owner  of  property  is  entitled  to  a  reasonable 
compensation  for  its  use,  even  though  it  be  clothed  with  a  public 
interest,  and  that  what  is  reasonable  is  a  judicial  and  not  a  legis- 
lative question,"  and  rejected  it,  saying:  "As  has  already  been 
shown,  the  practice  has  been  otherwise  ...  it  has  been  cus- 

1  Munn  v.  Illinois,  94  U.  S.  113  (1876). 


364        STATE   GOVERNMENT  IN  UNITED   STATES 

ternary  from  time  immemorial  for  the  legislature  to  declare  what 
shall  be  a  reasonable  compensation  under  such  circumstances.  .  .  . 
We  know  that  this  is  a  power  which  may  be  abused ;  but  that 
is  no  argument  against  its  existence.  For  protection  against 
abuses  by  legislatures  the  people  must  resort  to  the  polls,  not  to 
the  courts."  This  was  the  view  expressed  by  the  minority  in 
the  Topeka  bridge-works  case.  Though  temporarily  revived,  it 
was  becoming  old-fashioned,  and  was  vigorously  denounced  in  a 
dissenting  opinion  by  a  minority  of  the  court.  The  minority 
view  soon  came  to  prevail,  and  eventually  was  stated  by  an 
undivided  court  as  follows:  "A  state  enactment,  .  .  .  estab- 
lishing rates  for  the  transportation  of  persons  and  property  by 
railroad  that  will  not  admit  of  the  carrier  earning  such  compen- 
sation as  under  all  the  circumstances  is  just  to  it  and  to  the  public 
would  deprive  such  carrier  of  its  property  without  due  process 
of  law  .  .  .  ,  and  would  therefore  be  repugnant  to  the  fourteenth 
amendment  of  the  constitution  of  the  United  States.  While 
rates  for  the  transportation  of  persons  and  property  within  the 
limits  of  a  state  are  primarily  for  its  determination,  the  question 
whether  they  are  so  unreasonably  low  as  to  deprive  the  carrier 
of  its  property  without  such  compensation  as  the  constitution 
secures,  and  therefore  without  due  process  of  law,  cannot  be  so 
conclusively  determined  by  the  legislature  of  the  state  .  .  . 
that  the  matter  may  not  become  the  subject  of  judicial  inquiry." 
As  the  court  further  remarked,  "the  idea  that  any  legislature 
.  .  .  can  conclusively  determine  for  the  people  and  for  the 
courts  that  what  it  enacts  in  the  form  of  law  ...  is  consistent 
with  the  fundamental  law,  is  in  opposition  to  the  theory  of  our 
institutions."  l 

A  notable  assertion  of  the  power  of  the  courts  to  reject  un- 
reasonable acts  of  legislation,  or  so  to  restrict  their  application 
as  to  avoid  consequences  which  seem  to  the  courts  unreasonable, 
is  found  in  connection  with  the  judicial  interpretation  of  the 
antitrust  acts.  The  Sherman  antitrust  act  of  1890  is  entitled, 
"an  act  to  protect  trade  and  commerce  against  unlawful  re- 
straints and  monopolies,"  and  declares  every  contract,  combina- 
tion in  the  form  of  trust  or  otherwise,  or  conspiracy,  in  restraint 
of  trade  or  commerce  among  the  several  states,  to  be  illegal.  At 

1  Smyth  v.  Ames,  169  U.  S.  466,  526  (1898). 


THE  STATE  JUDICIARY  365 

first  the  United  State  Supreme  Court  held  every  contract  or 
combination  found  by  them  to  be  in  restraint  of  such  trade  to  be 
forbidden  by  the  act.     Then  in  the  Northern  Securities  case  * 
one  of  the  five  judges,  who  joined  in  the  decision  that  the  North- 
ern Securities  Company  was  an  illegal  combination,  stated  that 
he  could  not  assent  to  the  view  that  every  contract  or  combina- 
tion that  might  be  found  to  be  in  restraint  of  interstate  trade 
would  be  illegal.     The  only  contracts  and  combinations  which 
in  his  opinion  should  be  declared  illegal  were  those  imposing 
an  unreasonable  restraint  upon  interstate  trade.2    Finally,  in 
the  Standard  Oil  and  American  Tobacco  Company  cases,  decided 
seven  years  later,  this  view  was  accepted  by  eight  of  the  nine 
members  of  the  court.3     The  manner  of  applying  the  rule  of 
reason  to  state  antitrust  legislation  is  well  illustrated  by  two 
recent  cases  involving  the  so-called  Harvester  trust.4    In  one 
of  these  cases  a  Missouri  act,  forbidding  "all  arrangements  .  .  . 
between  two  or  more  persons,  designed  to  lessen,  or  which  tend 
to  lessen,  lawful  trade  or  full  competition  .  .  .  ,"  or  "which  are 
designed  ...  to    increase,    or   which    tend    to    increase,    the 
market  price  of  any  product  .  .  .  ,"  was  sustained  by  the  United 
States  Supreme  Court.     In  the  other  case,  the  Kentucky  anti- 
trust acts,  which  had  been  construed  by  the  state  supreme  court 
to  make  any  combination  for  the  purpose  of  controlling  prices 
lawful,  unless  for  the  purpose  or  with  the  effect  of  fixing  a  price 
greater  or  less  than  the  real  value  of  the  article,  were  declared 
unconstitutional.     The  United  States  Supreme  Court  held  that 
the  expression  "real  value,"  defined  by  the  state  supreme  court 
as   "market  value  under  fair  competition  and   under  normal 
market  conditions, "  was  in  the  given  case  nothing  more  than  an 
illusory  form  of  words,  and  that  the  law  as  construed  by  the 
state   court  prescribed   an  unreasonable  standard   of  conduct. 
Doubtless,  however,  if  the  state  supreme  court  had  not  been 
trying  to  construe  the  law  in  such  a  way  as  to  apply  to  foreign 
combinations  like  the  Harvester  Company  and  not  to  apply  to 

1  Northern  Securities  Co.  ».  United  States,  193  U.  S.  197  (1004). 
*  See  case  cited,  at  p.  361. 

3  221  U.  S.  i,  106. 

4  International  Harvester  Co.  r.  Missouri,  234  U.  S.,  199,  and  International 
Harvester  Co.  v.  Kentucky,  234  U.  S.  216;   both  decided  in  1914. 


366       STATE  GOVERNMENT  IN  UNITED  STATES 

domestic  combinations  like  the  tobacco  growers'  association, 
they  could  have  given  the  law  what  would  have  seemed  to  the 
United  States  court  a  reasonable  meaning. 

The  rule  of  reason  was  first  applied  to  labor  legislation  in  a 
decision  of  the  New  York  Court  of  Appeals  in  1885. 1  In  the 
preceding  year  the  legislature  enacted  a  law  "to  improve  the 
public  health  by  prohibiting  the  manufacture  of  cigars  and 
preparation  of  tobacco  in  any  form  in  tenement  houses"  in 
certain  cities,  namely  New  York  and  Brooklyn.  The  con- 
stitutionality of  the  act  was  immediately  attacked  on  the  ground 
that  it  would  deprive  the  manufacturers  of  cigars  and  other 
tobacco  products  in  tenement  houses  of  liberty  and  property 
without  due  process  of  law.  The  court  declared  that  "the 
constitutional  guarantee  that  no  person  shall  be  deprived  of  his 
property  without  due  process  of  law  may  be  violated  without  the 
physical  taking  of  property.  .  .  .  Any  law  which  .  .  .  takes 
away  any  of  its  essential  attributes  deprives  the  owner 'of  his 
property.  ...  So  too  one  may  be  deprived  of  his  liberty  and 
his  constitutional  rights  thereto  violated  without  the  actual  im- 
prisonment or  restraint  of  his  person.  Liberty  ...  as  under- 
stood in  this  country,  means  the  right,  not  only  of  freedom  from 
actual  servitude,  imprisonment,  or  restraint,  but  the  right  of 
one  to  use  his  faculties  in  all  lawful  ways,  to  live  and  work  where 
he  will.  .  .  .  Generally  it  is  for  the  legislature  to  determine  what 
laws  and  regulations  are  needed  to  protect  the  public  health  and 
secure  the  public  comfort  and  safety,  and  while  its  measures  are 
calculated,  intended,  convenient,  and  appropriate  to  accomplish 
these  ends,  the  exercise  of  its  discretion  is  not  subject  to  review 
by  the  courts.  But  they  must  have  some  relation  to  these 
ends.  Under  the  mere  guise  of  police  regulations,  personal  rights 
and  private  property  cannot  be  arbitrarily  invaded,  and  the 
determination  of  the  legislature  is  not  final  or  conclusive.  If  it 
passes  an  act  ostensibly  for  the  public  health,  and  thereby  de- 
stroys or  takes  away  the  property  of  the  citizen,  or  interferes 
with  his  personal  liberty,  then  it  is  for  the  courts  to  scrutinize 
the  act  and  see  whether  it  really  relates  to  and  is  convenient  and 
appropriate  to  promote  the  public  health.  It  matters  not  that 
the  legislature  may  in  the  title  to  the  act,  or  in  its  body,  declare 

1  In  re  Jacobs,  98  N.  Y.  98. 


THE  STATE  JUDICIARY  367 

that  it  is  intended  for  the  improvement  of  the  public  health. 
Such  a  declaration  does  not  conclude  the  courts,  and  they  must 
yet  determine  the  fact  declared  and  enforce  the  supreme 
law.  ..."  The  court  thereupon  determined  that  the  act  in 
question  was  not  a  health  law  and  that  it  had  no  relation  what- 
ever to  the  public  health.  Consequently,  the  act  was  declared 
unconstitutional,  being  in  the  opinion  of  the  court  an  unreason- 
able exercise  of  the  police  power. 

Since  this  decision  in  the  Jacobs  case,  the  judicial  veto  has  been 
invoked  on  the  ground  of  unreasonableness  more  frequently 
against  labor  laws  than  against  any  other  single  class  of  measures. 
Laws  designed  to  protect  industrial  wage-earners  and  thereby 
also  the  people  as  a  whole  against  the  injurious  effects  of  employ- 
ment in  factories,  mills,  mines,  and  other  work-places  for  ex- 
cessively long  hours,  or  under  unwholesome  conditions,  or  at 
wages  inadequate  to  meet  the  cost  of  the  necessaries  of  decent 
living,  or  in  other  respects  to  regulate  the  conditions  of  employ- 
ment in  modern  industry  in  the  interest  of  the  employees,  must 
be  defended,  if  at  all,  as  necessary  and  proper  uses  of  the  police 
power.  The  police  power  may  be  defined  as  the  power  of 
promoting  the  public  welfare  by  restraining  and  regulating  the 
use  of  liberty  and  property.1  Its  use  therefore  in  every  case 
involves  some  deprivation  of  liberty  and  property,  and  gives 
the  courts  the  opportunity  to  decide  whether  such  deprivation 
has  been  accomplished  by  due  process  of  law.  In  the  opinion 
of  the  courts,  many  laws  limiting  the  hours  of  labor  of  men  and 
women,  regulating  employment  under  unwholesome  conditions, 
prohibiting  the  payment  of  wages  in  anything  but  lawful  money, 
requiring  the  payment  of  wages  at  frequent  and  regular  intervals, 
forbidding  deductions  from  wages  on  account  of  imperfect 
workmanship,  requiring  compensation  for  industrial  accidents  at 
specified  rates,  prohibiting  discrimination  against  workmen  on 
account  of  membership  in  trade  unions,  or  in  other  respects 
limiting  the  freedom  of  contract  between  employer  and  em- 
ployee, have  been  unreasonable,  and  consequently  have  been 
vetoed  by  them.2  The  courts  have  set  up  a  new  right  unknown 
prior  to  1885,  namely  the  right  to  freedom  of  contract,  and  in 

1  See  E.  Freund,  The  Police  Power. 

1  See  F.  J.  Goodnow,  Social  Reform  and  the  Constitution, 


368       STATE  GOVERNMENT  IN  UNITED  STATES 

many  cases  have  declared  to  be  unconstitutional,  state  enactments 
in  the  interest  of  industrial  wage-earners  interfering  therewith.1 


CRITICISM  OF  RULE  OF  REASON 

The  unreasonableness  of  the  legislation  to  which  the  rule  of 
reason  has  been  applied  is,  however,  a  matter  of  opinion.  The 
enactment  of  such  laws  in  itself  is  evidence  of  a  strong  and,  at 
least  in  the  legislature,  preponderant  opinion  that  they  are 
reasonable.  Naturally  the  courts  have  not  escaped  adverse 
criticism  for  their  use  of  the  judicial  veto  to  defeat  such  legislation. 
The  practice  of  vetoing  laws  because  they  seem  to  the  courts 
to  be  unreasonable  is  particularly  vexatious  when  the  courts  are 
closely  divided  in  their  opinion.  Of  seventy-eight  cases  in  which 
statutes  were  vetoed  by  the  United  States  Supreme  Court  be- 
tween 1901  and  1907,  twenty-nine  decisions  were  rendered  by  a 
vote  of  five  to  four,  forty-six  by  a  vote  of  six  to  three,  and  three 
by  a  vote  of  five  to  three.2  Mr.  Bryan,  in  his  famous  Chicago 
convention  speech  of  1896,  voiced  the  thoughts  of  many,  when 
he  exclaimed  :  "They  criticize  us  for  our  criticism  of  the  Supreme 
Court  of  the  United  States.  My  friends,  we  have  not  criticized, 
we  have  simply  called  attention  to  what  you  already  know. 
If  you  want  criticisms,  read  the  dissenting  opinions  of  the 
Court." 

The  courts,  indeed,  have  found  the  severest  critics  of  the 
application  of  the  rule  of  reason  among  the  judges  themselves. 
One  example,  so  far  as  its  application  to  labor  legislation  is  con- 
cerned, will  serve  as  well  as  many.  In  1905,  the  United  States 
Supreme  Court  vetoed  the  New  York  bakers'  ten-hour  law.  This 
law  had  been  enacted  to  protect  the  health  of  employees  in 
bakeries,  and  had  been  sustained  by  the  state  courts  on  the  ground 
that  it  was  a  reasonable  exercise  of  the  police  power.  Altogether 
eight  of  the  thirteen  judges  who  pronounced  judgment  upon  the 
act  during  its  passage  through  the  state  courts,  and  four  of  the 
nine  members  of  the  United  States  Supreme  Court,  were  of  the 
opinion  that  the  act  should  be  upheld  as  a  valid  health  law. 
Five  members  of  the  latter  court,  however,  declared  that  "there 

1  See  R.  Pound,  "Liberty  of  Contract,"  18  Yale  Law  Journal,  p.  454. 
1  See  Raines,  op.  cit.,  p.  327. 


THE  STATE  JUDICIARY  369 

is  in  our  judgment  no  reasonable  ground  for  holding  this  to  be 
necessary  or  appropriate  as  a  health  law.  .  .  ."  And  again, 
"There  is  no  reasonable  ground  for  interfering  with  the  liberty 
of  person  or  the  right  of  free  contract  by  determining  the  hours 
of  labor  in  the  occupation  of  a  baker."  This  decision  has  been 
freely  condemned  by  the  critics  of  the  courts,  but  by  none  more 
effectively  than  by  the  dissenting  members  of  the  Supreme  Court 
itself.  Justice  Harlan  said :  "It  is  enough  for  the  determination 
of  this  case,  and  it  is  enough  for  this  Court  to  know,  that  the 
question  is  one  about  which  there  is  room  for  debate  and  for  an 
honest  difference  of  opinion.  There  are  many  reasons  of  a 
weighty  substantial  character  ...  in  support  of  the  theory 
that,  all  things  considered,  more  than  ten  hours'  steady  work  each 
day,  from  week  to  week,  in  a  bakery  or  confectionery  establish- 
ment, may  endanger  the  health  and  shorten  the  lives  of  the  work- 
men, thereby  diminishing  their  physical  and  mental  capacity 
to  serve  the  state  and  to  provide  for  those  dependent  upon  them. 
If  such  reasons  exist,  that  ought  to  be  the  end  of  this  case,  for 
the  state  is  not  amenable  to  the  judiciary  in  respect  of  its  legis- 
lative enactments,  unless  such  enactments  are  plainly,  palpably, 
beyond  all  question,  inconsistent  with  the  Constitution  of  the 
United  States." 

Justice  Holmes  registered  a  separate  protest  against  the  deci- 
sion of  the  majority  of  the  court.  "This  case,"  he  declared, 
"is  decided  upon  an  economic  theory  which  a  large  part  of  the 
country  does  not  entertain.  If  it  were  a  question  whether  I 
agreed  with  that  theory,  I  should  desire  to  study  it  further  and 
long  before  making  up  my  mind.  But  I  do  not  conceive  that  to 
be  my  duty,  because  I  strongly  believe  that  my  agreement  or 
disagreement  has  nothing  to  do  with  the  right  of  a  majority 
to  embody  their  opinions  in  law.  .  .  .  The  fourteenth  amend- 
ment does  not  enact  Mr.  Herbert  Spencer's  Social  Statics.  .  .  . 
A  constitution  is  not  intended  to  embody  a  particular  economic 
theory,  whether  of  paternalism  and  the  organic  relation  of  the 
citizen  to  the  state  or  of  laissez  faire.  It  is  made  for  people  of 
fundamentally  differing  views,  and  the  accident  of  our  finding 
certain  opinions  natural  and  familiar  or  novel  and  even  shocking 
ought  not  to  conclude  our  judgment  upon  the  question  whether 
statutes  embodying  them  conflict  with  the  constitution  of  the 

2B 


370       STATE  GOVERNMENT  IN  UNITED  STATES 

United  States."  There  can  be  no  doubt  that  Justice  Holmes 
expressed  correctly  the  duty  of  the  courts  in  the  exercise  of  the 
power  of  judicial  review.  The  Federal  Constitution  explicitly 
guarantees  to  the  people  of  the  states  a  republican  form  of 
government,  but  it  does  not  guarantee  the  conduct  of  state 
affairs  according  to  any  particular  theory.  Certainly  it  does  not 
guarantee  the  conduct  of  state  affairs  according  to  the  theory  of 
laissez  faire.  Socialism  itself  would  be  constitutional,  if  a  social 
revolution  were  necessary  for  the  protection  of  the  people,  and 
if  that  particular  kind  of  a  social  revolution  were  appropriate  to 
the  occasion.  Should  such  a  revolution  be  brought  about  by 
"due  process  of  law,"  the  judiciary  would  have  no  more  right, 
under  any  sound  interpretation  of  the  American  constitutional 
system,  to  interpose  with  a  judicial  veto,  than  they  had  to  at- 
tempt to  settle  the  question  of  slavery  by  the  Dred  Scott  decision. 
Criticism  of  the  courts  for  the  injudicious  application  of  the 
rule  of  reason  dates  from  the  first  tune  when  the  courts  applied 
the  rule.  In  the  first  important  case,  the  New  York  prohibitory 
liquor  law  case,  decided  in  1855,  the  majority  of  the  court  said, 
"Liquor  is  not  a  nuisance  per  se,  nor  can  it  be  made  so  by  a 
simple  legislative  declaration."  Since  prohibitory  liquor  laws 
had  been  enacted  and  were  then  in  full  force  in  ten  or  a  dozen 
other  states,  there  was  a  good  deal  of  criticism  of  this  decision. 
The  court  would  doubtless  have  been  correct  in  saying  that  liquor 
had  not  been  considered  a  nuisance  under  the  common  law,  but 
whether  or  not  liquor  was  considered  a  nuisance  by  the  people 
of  New  York  in  1855  was  certainly  a  question  which  the  people 
could  decide  for  themselves  through  their  regular  representatives 
better  than  the  court  could  decide  it  for  them.  When  the  same 
question  subsequently  arose  in  another  case  and  was  eventually 
brought  before  the  Supreme  Court  of  the  United  States,  that 
court  was  of  the  opinion  that  "the  courts  cannot,  without  usurp- 
ing legislative  functions,  override  the  will  of  the  people  as  thus 
expressed  by  their  chosen  representatives."  1  The  New  York 
courts  received  a  similar  rebuff  from  the  United  States  Supreme 
Court  in  the  oleomargarine  case.  In  1885  the  New  York  court 
of  appeals  declared  unconstitutional  "an  act  to  prevent  decep- 
tion in  sales  of  dairy  products,"  which  prohibited  the  sale  of 

1  Mugler  v.  Kansas,  123  U.  S.  623  (1887). 


THE  STATE  JUDICIARY  371 

oleomargarine.  This  decision  was  made  on  the  ground  that  the 
anti-oleomargarine  act  was  arbitrary  class  legislation,  unreason- 
ably sacrificing  the  rights  of  the  oleo  manufacturers  to  the 
interests  of  the  butter  makers.1  When  a  similar  statute,  enacted 
by  the  legislature  of  Pennsylvania,  came  shortly  afterwards  be- 
fore the  Supreme  Court  of  the  United  States,  the  court  said : 
"It  cannot  adjudge  that  the  defendant's  rights  of  liberty  and 
property,  as  thus  denned,  have  been  infringed  by  the  statute  of 
Pennsylvania,  without  holding  that,  although  it  may  have  been 
enacted  in  good  faith  for  the  objects  expressed  in  the  title, 
namely,  to  protect  the  public  health  and  to  prevent  the  adultera- 
tion of  dairy  products  and  fraud  in  the  sale  thereof,  it  has  in  fact 
no  real  and  substantial  relation  to  those  objects.  The  court  is 
unable  to  affirm  that  this  legislation  has  no  real  or  substantial 
relation  to  those  subjects."  2  A  dissenting  judge  of  the  Supreme 
Court  pointed  out  the  conflict  between  this  decision  and  that  of 
the  New  York  court,  vetoing  the  similar  act  of  the  New  York 
legislature,  but  the  majority  repudiated  that  precedent. 

Dissatisfaction  with  the  use  of  the  judicial  veto  by  the  federal 
courts  in  cases  involving  the  rule  of  reason  has  on  the  whole, 
particularly  in  recent  times,  been  much  less  than  with  its  use 
by  some  of  the  state  courts.  There  have  been  several  instances 
in  which  similar  legislation  has  been  attacked  in  the  courts  of  a 
number  of  states,  and  has  been  pronounced  unconstitutional  by 
some  state  courts  and  constitutional  by  others.  In  most  of 
these  cases  the  United  States  Supreme  Court  has  taken  the  more 
sympathetic  view  of  the  reasonableness  of  these  laws.  For 
example,  to  consider  only  the  field  of  labor  legislation,  laws 
prescribing  the  mode  of  weighing  coal  in  order  to  fix  the  com- 
pensation of  coal  miners  have  been  held  invalid  in  Illinois, 
Missouri,  Colorado,  and  Kansas,  but  not  in  Tennessee,  nor,  on 
appeal  in  the  last  case,  by  the  federal  Supreme  Court.  Laws 
designed  to  prevent  extortion  at  company  stores  by  requiring 
employers  to  pay  wages  in  money  have  been  declared  unconstitu- 
tional in  several  states,  and  constitutional  in  several  other  states 
and  in  the  United  States.  In  one  state  the  courts  denied-  the 
power  of  the  legislature  to  enact  a  mandatory  workmen's  com- 

1  People  v.  Marx,  99  N.  Y.  277  (1885). 

*  Powell  v.  Pennsylvania,  127  U.  S.  678  (1888). 


372       STATE  GOVERNMENT  IN  UNITED  STATES 

pensation  law,  but  similar  laws  have  been  enacted  in  many  other 
states  and  also  by  Congress  without  incurring  judicial  condemna- 
tion. Probably  nothing  has  injured  the  prestige  of  certain  state 
courts  more  seriously  than  their  refusal  to  enforce  laws,  involving 
an  alleged  unreasonable  exercise  of  the  police  power,  which  the 
courts  of  other  states  and  of  the  United  States  have  declared 
constitutionally  unobjectionable.  The  result  of  such  decisions 
in  many  states  has  been  to  create  grave  uncertainty  as  to  the 
limits  of  legislative  power  to  deal  with  social  and  industrial  condi- 
tions and  to  cause  excessive  delay  in  putting  into  effect  remedial 
legislation  demanded  by  a  strong  and  preponderant  opinion 
among  the  people.  The  modern  development  of  the  rule  of 
reason  has  doubtless  greatly  increased  the  scope  and  importance 
of  the  judicial  veto,  but  its  injudicious  use  has  seriously  impaired 
popular  confidence  in  the  courts,  particularly  in  certain  states.1 

JUDICIAL    REVIEW    OF    THE    VALIDITY    OF    LEGISLATIVE 

PROCEDURE 

A  second  source  of  the  recent  growth  in  the  political  power  of 
the  courts,  which  also  has  occasioned  criticism  of  their  use  of 
the  judicial  veto,  is  to  be  found  in  the  constitutional  limitations 
upon  the  forms  of  legislation  and  legislative  procedure.  The 
principal  limitations  upon  the  forms  of  legislation  are  the  pro- 
visions that  the  subject  of  an  act  shall  be  expressed  in  the  title, 
and  that  the  act  shall  not  embrace  more  than  one  subject,  found 
in  about  two-thirds  of  the  constitutions,  and  the  provisions  for- 
bidding the  amendment  of  acts  by  mere  reference  to  title,  found  in 
nearly  half  of  the  constitutions.  These  limitations  were  adopted 
to  protect  honest  legislators  against  fraud  and  surprise,  and  to 
stop  the  practice  of  logrolling.2  They  undoubtedly  inculcate  a 
sound  legislative  practice,  and  if  not  construed  too  literally  by 
the  courts,  tend  to  encourage  clearness  as  well  as  honesty  in 
legislation.  Unfortunately  they  have  been  construed  too  liter- 
ally by  the  courts  of  some  states,  giving  rise  to  an  enormous 
amount  of  litigation,  and  leading  to  the  nullification  of  beneficial 
as  well  as  undesirable  statutes.  An  eminent  authority  notes 

1  See  Jane  Addams,  in  American  Journal  of  Sociology,  xiii,  p.  772. 
*  See  ante,  ch.  v. 


THE  STATE  JUDICIARY  373 

that  "while  the  courts  lean  to  a  liberal  construction,  they  have 
in  a  minority  of  cases  been  indefensibly  and  even  preposterously 
technical." l  In  recent  years  there  has  been  an  astonishing 
number  of  acts  vetoed  by  the  courts  on  account  of  purely  formal 
defects,  especially  in  certain  states  of  the  South 'and  West.  On 
the  whole,  however,  the  limitations  upon  the  forms  of  legislation 
have  been  of  less  consequence,  as  applied  by  the  courts,  than 
those  upon  legislative  procedure. 

The  principal  procedural  requirements  are  these :  that  bills 
shall  be  read  three  separate  times,  or  that  they  shall  be  read  on 
three  separate  days,  or  that  they  shall  be  read  three  times  in 
full ;  that  they  shall  be  referred  to  legislative  committees  and 
duly  reported  by  the  same;  that  they  shall  not  be  introduced 
after  a  stated  period ;  that  rejected  measures  shall  not  be  rein- 
troduced  in  the  same  session ;  that  a  motion  to  reconsider  shall 
not  be  entertained  on  the  same  day ;  that  bills  shall  not  be  so 
amended  as  to  alter  the  subject  thereof ;  that  bills  and  all  amend- 
ments shall  be  printed ;  that  they  shall  be  on  the  desks  of  mem- 
bers in  their  final  form  three  days  before  their  final  passage ;  that 
a  majority  of  all  the  members  be  required  for  passing  a  bill ; 
that  the  final  vote  be  by  yeas  and  nays  and  be  entered  on  the 
journal ;  and  that  the  signature  of  the  presiding  officer  must  be 
affixed  hi  open  session.  Some  of  these  provisions  are  salutary, 
and  their  fulfillment  can  be  readily  verified  by  examining  the 
journals,  such  as  the  requirements  relating  to  the  final  vote  on 
the  passage  of  a  bill.  Others,  however,  are  impracticable,  and 
in  practice  are  regularly  evaded,  such  as  the  requirement  that 
a  bill  be  read  three  times  in  full.  Compliance  with  the  con- 
stitutional requirement  in  such  cases  becomes  perfunctory  or  is 
frankly  ignored.  In  the  latter  case  the  necessary  fraud  may  be 
covered  up  by  a  false  entry  on  the  journal.  The  requirement 
that  no  amendment  be  entertained  which  alters  the  subject  of  a 
bill  gives  rise  to  exceedingly  difficult  questions  of  construction, 
which  are  highly  unsuitable  for  judicial  review.  In  many  states 
the  judicial  veto  is  freely  employed  to  condemn  measures  for 
procedural  defects,  often  without  much  or  any  regard  for  their 

1  See  E.  Freund,  "The  Problem  of  Adequate  Legislative  Powers  under  State 
Constitutions,"  in  Publications  of  the  New  York  State  Constitutional  Convention  Com- 
mission, Papers  on  Special  Topics,  pt.  i,  p.  107. 


374        STATE  GOVERNMENT  IN  UNITED   STATES 

real  merits.1  In  Alabama  and  Mississippi,  for  example,  during 
five  recent  years  nearly  two  score  of  legislative  acts  were  declared 
unconstitutional  by  the  state  courts,  mostly  on  account  of  formal 
or  procedural  defects. 

A  recent  and  judicious  critic  of  the  work  of  the  courts  suggests 
that  the  trouble  lies  in  the  constitutions  themselves  as  well  as 
in  the  courts.2  "The  sound  policy  of  constitution-making  is  to 
impose  procedural  requirements  only  under  the  following  condi- 
tions:  (i)  that  they  serve  an  object  of  vital  importance;  (2) 
that  they  can  be  complied  with  without  unduly  impeding  busi- 
ness ;  (3)  that  they  are  not  susceptible  of  evasion  by  purely  formal 
compliance  or  by  false  journal  entries ;  (4)  that  they  do  not  raise 
difficult  questions  of  construction;  and  (5)  that  the  fact  of 
compliance  or  non-compliance  can  be  readily  ascertained  by  an 
inspection  of  the  journal.  The  application  of  these  tests  would 
lead  to  the  discarding  of  most  of  the  existing  provisions.  .  .  . 
As  to  those  retained,  the  judicial  power  to  enforce  compliance 
should  be  limited."  Professor  Freund's  suggestions  for  the 
limitation  of  the  power  of  judicial  review  are,  that  the  validity 
of  a  statute  should  not  be  questioned  on  account  of  procedural 
defects  after  the  expiry  of  a  short  period  from  the  date  of  its 
enactment,  or  that  no  statute  should  be  questioned  at  all  for 
procedural  or  formal  defects,  if  the  attorney-general,  prior  to 
approval  by  the  governor,  has  certified  that  the  form  and  pro- 
cedure are  constitutionally  correct.  In  short,  relief  from  the 
evils  of  the  injudicious  use  of  the  judicial  veto  on  account  of 
technicalities  should  be  sought  by  increasing  executive  responsi- 
bility for  the  technical  perfection  of  legislation. 

REFORM  OF  THE  JUDICIAL  VETO 

Many  of  the  recent  critics  of  the  state  judiciaries  have  de- 
manded more  drastic  remedies  for  the  abuse  of  the  judicial  veto. 
The  belief  that  technical  justice  too  frequently  was  substituted 
for  substantial  justice,  and  especially  the  belief  that  the  rule  of 
reason,  as  applied  by  the  courts,  too  frequently  was  unreasonable, 

1  For  a  particularly  flagrant  case  of  the  judicial  veto  on  technical  grounds,  con- 
trary to  the  merits,  see  Koehler  and  Lange  v.  Hill,  60  Iowa,  543  (1883),  cited  in 
Thayer's  Cases  on  Constitutional  Law,  i,  p.  252. 

3  See  E.  Freund,  op.  tit.,  p.  104. 


THE  STATE  JUDICIARY  375 

culminated  in  a  demand  for  more  direct  popular  control  of  the 
judiciary.  The  first  method  of  direct  popular  control  advocated 
by  the  critics  of  the  judiciary  was  the  recall  of  judges.  As  has 
already  been  stated,  six  of  the  ten  states  which  have  adopted  the 
popular  recall  of  state  officials  included  judges  among  the  officials 
subject  to  recall.  Hitherto,  however,  the  recall  has  been  utilized 
to  remove  judges  from  office  even  less  than  in  the  case  of  other 
state  officials.  No  judge  has  yet  been  recalled  because  of 
popular  dissatisfaction  with  a  decision  involving  any  question 
of  constitutional  interpretation.  The  first  instance  of  the 
popular  recall  of  a  judge  occurred  in  California.  The  judge  of  a 
lower  court  reduced  to  a  nominal  sum  the  bail  originally  required 
of  a  prisoner  awaiting  trial  for  a  serious  offense.  Thereupon  the 
prisoner  fled.  The  judge  was  charged  with  collusion  in  the 
prisoner's  escape,  and  was  recalled  by  the  indignant  people  of 
his  district.  The  recall  has  not  yet  even  been  invoked  against  a 
member  of  any  superior  or  supreme  court.  In  short,  the  recall 
of  judges,  like  the  recall  of  state  officials  generally,  seems  likely 
to  be  little  used. 

Another  method  of  direct  popular  control  is  the  recall  of  judicial 
decisions.  The  recall  of  judicial  decisions  was  first  suggested  by 
Theodore  Roosevelt  in  an  address  before  the  Ohio  constitutional 
convention  of  1912.  The  plan,  as  finally  explained  in  his  ad- 
dress before  the  Progressive  National  Convention  the  same  year, 
was  as  follows  :  —  "The  people  themselves  must  be  the  ultimate 
makers  of  their  own  constitution,  and  where  their  agents  differ 
in  their  interpretations  of  the  constitution  the  people  themselves 
should  be  given  the  chance,  after  full  and  deliberate  judgment, 
authoritatively  to  settle  what  interpretation  it  is  that  their  rep- 
resentatives shall  thereafter  adopt  as  binding.  Whenever  in 
our  constitutional  system  of  government  there  exist  general 
prohibitions  that,  as  interpreted  by  the  courts,  nullify,  or  may 
be  used  to  nullify,  specific  laws  passed,  and  admittedly  passed, 
in  the  interest  of  social  justice,  we  are  for  such  immediate  law  or 
amendment  to  the  constitution,  if  that  be  necessary,  as  will 
thereafter  permit  a  reference  to  the  people  of  the  public  effect 
of  such  decision  under  forms  securing  full  deliberation,  to  the 
end  that  the  specific  act  of  the  legislative  branch  of  the  govern- 
ment, thus  judicially  nullified,  and  such  amendments  thereof  as 


376       STATE   GOVERNMENT  IN  UNITED  STATES 

may  come  within  its  scope  and  purpose,  may  constitutionally  be 
excepted  by  vote  of  the  people  from  the  general  prohibitions, 
the  same  as  if  that  particular  act  had  been  expressly  excepted 
when  the  prohibition  was  adopted.  This  will  necessitate  the 
establishment  of  machinery  for  making  much  easier  of  amend- 
ment both  the  national  and  the  several  state  constitutions, 
especially  with  the  view  of  prompt  action  on  certain  judicial 
decisions  —  action  as  specific  and  limited  as  that  taken  by  the 
passage  of  the  eleventh  amendment  to  the  federal  constitution." 
It  is  evident  that  the  term,  recall  of  judicial  decisions,  is  a 
misnomer.  The  proposal  was  not  to  reverse  the  action  of  the 
judiciary  in  a  case  once  decided  by  them,  but  to  prevent  such 
action  from  becoming  a  precedent  for  the  decision  of  future  cases 
arising  under  the  same  law,  if  the  people  were  of  the  opinion 
that  the  rule  of  reason  had  been  unreasonably  applied  in  that 
case  to  that  particular  law.  In  Colorado  this  proposal  was 
adopted  in  the  form  of  a  constitutional  amendment,  authorizing 
the  people,  by  the  same  procedure  as  that  provided  for  the 
direct  popular  initiative,  to  order  the  enforcement  of  a  statute, 
which  had  been  duly  enacted  by  the  legislature  and  approved  by 
the  governor,  but  vetoed  by  the  supreme  court,  if  the  majority 
so  desired.  No  decision,  however,  has  yet  been  "recalled"  in 
Colorado  by  this  procedure.  In  New  York  the  decision  of  the 
state  supreme  court,  adverse  to  the  constitutionality  of  the  work- 
men's compensation  act,  was  subsequently  recalled  by  the  ordi- 
nary process  of  constitutional  amendment.  In  this  instance  the 
amendment  adopted  by  the  people  specifically  provided  that  the 
"due  process  of  law"  clause  should  not  thereafter  be  construed 
to  forbid  the  enactment  by  the  legislature  of  a  workmen's  com- 
pensation act.  In  general,  those  states  which  possess  the  direct 
popular  initiative,  applying  to  constitutional  amendments  as 
well  as  to  ordinary  statutes,  already  possess  all  the  machinery 
necessary  for  precisely  that  "recall  of  judicial  decisions"  which 
Roosevelt  advocated,  and  in  any  state  where  the  process  of 
constitutional  amendment  is  reasonably  easy  there  is  little 
time  to  be  gained  by  the  adoption  of  special  procedure  for  the 
recall  of  decisions.  In  states  where  the  process  of  constitutional 
amendment  is  slow  and  inconvenient  the  general  reform  of  that 
process  is  what  is  most  immediately  important.  It  is  not  sur- 


THE  STATE  JUDICIARY  377 

prising,  therefore,  that  the  "recall  of  decisions"  has  made  little 
progress  under  that  name. 

The  agitation  over  the  judicial  veto,  however,  was  not  with- 
out effect.  The  Ohio  constitutional  convention,  where  the  plan 
for  the  "recall  of  decisions"  was  first  broached,  recognized  the 
evil  which  Roosevelt  sought  to  relieve,  and  provided  a  remedy 
of  its  own.  The  Ohio  plan,  adopted  by  the  people  in  the  same 
year,  provided  simply  that  statutes  should  not  be  declared  un- 
constitutional by  the  lower  courts,  nor  by  the  supreme  court 
unless  at  least  six  of  the  seven  judges  concurred  in  the  decision.1 
This  plan  should  effectually  prevent  the  nullification  of  legisla- 
tion by  the  state  courts  unless  its  repugnance  to  the  constitution 
is  actually  clear  beyond  a  reasonable  doubt.  Another  good  re- 
sult of  the  agitation  over  the  judicial  veto  was  the  adoption  by 
Congress  in  1915  of  an  amendment  to  the  federal  judiciary  act, 
providing  that  appeals  might  be  taken  from  the  state  courts  to 
the  United  States  Supreme  Court  in  all  cases  involving  the  inter- 
pretation of  the  Constitution  of  the  United  States,  even  when 
the  rights  claimed  under  the  Federal  Constitution  were  pro- 
tected by  the  state  courts.  Thus  it  should  be  possible  hereafter 
for  the  federal  courts  to  establish  a  uniform  interpretation  of 
the  Federal  Constitution  throughout  the  country  in  all  cases  in- 
volving the  exercise  of  the  rule  of  reason  under  the  "due  process 
of  law"  clause.  The  most  important  result  of  the  agitation  over 
the  judicial  veto  was  the  change  it  produced  in  the  attitude  of 
the  courts  towards  legislation  enacted  under  the  police  power 
for  the  protection  of  industrial  wage  earners  against  the  hazards 
of  their  employments.  The  Illinois  supreme  court,  for  example, 
which  in  1895  denied  the  power  of  the  legislature  to  limit  the 
hours  of  labor  of  women  employed  in  industry,  reversed  that 
decision  in  igio.2  The  New  York  court  of  appeals,  which  in  1907 
denied  the  power  of  the  legislature  to  prohibit  the  employment 
of  women  in  industry  at  night,  reversed  that  decision  in 


1  A  similar  plan  was  submitted  to  the  people  of  Minnesota  in  1914  and  approved 
by  a  majority  of  those  voting  thereon,  but  failed  of  adoption  because  of  the  failure 
of  a  majority  of  all  those  attending  the  polls  to  vote  for  it,  as  required  by  the  con- 
stitution of  that  state.  See  American  Year  Book  for  1914,  p.  62. 

1  Ritchie  v.  People,  155  HI.  98  (1895)  ;  Ritchie  v.  Wayman,  244X11.  509  (1910). 

»  People  v.  Williams,  189  N.  Y.  131  (1907)  ;  People  v.  Schweinler  Press,  214 
N.  Y.  395  (i9i5). 


378       STATE  GOVERNMENT  IN  UNITED  STATES 

DEVELOPMENT  OF  THE  IDEA  OF  LIBERTY 

The  truth  is  that  a  profound  change  has  been  taking  place  in 
the  dominant  conceptions  of  liberty  and  justice.  In  the  latter 
part  of  the  nineteenth  century  the  courts  came  much  more  com- 
pletely than  at  any  previous  time  under  the  influence  of  the 
individualistic  social  philosophy  of  the  English  utilitarians. 
They  seem  to  have  been  especially  impressed  with  the  later  form 
of  that  philosophy,  formulated  by  Herbert  Spencer.  This  influ- 
ence is  clearly  revealed  in  numerous  judicial  opinions  and  legal 
writings,  and  was  well  expressed  by  the  then  leader  of  the  Ameri- 
can bar,  James  C.  Carter.1  "There  is  a  guide,"  he  wrote,  "which, 
when  kept  clearly  and  constantly  in  view,  sufficiently  informs  us 
what  we  should  aim  to  do  by  legislation  and  what  should  be 
left  to  other  agencies.  This  is  what  I  have  so  often  insisted  upon 
as  the  sole  function  both  of  law  and  legislation,  namely,  to 
secure  to  each  individual  the  utmost  liberty  which  he  can  enjoy 
consistently  with  the  like  liberty  to  all  others.  .  .  .  To  leave 
each  man  to  work  out  in  freedom  his  own  happiness  or  misery, 
to  stand  or  fall  by  the  consequences  of  his  own  conduct,  is  the 
true  method  of  human  discipline."  This  is  a  negative  conception 
of  liberty  and  justice,  which  was  probably  never  consciously  ac- 
cepted by  the  American  people  as  a  whole,  certainly  not  without 
important  qualifications.  If  held  at  the  time  of  the  Civil  War,  it 
would  have  left  the  freedmen,  for  example,  to  relapse  into  peonage 
under  the  guise  of  liberty  of  contract.  Such  a  conception  made 
it  possible  for  intelligent  men  sincerely  to  denounce  plans  "to 
equalize  the  inequalities  which  the  rights  of  free  contract  and 
private  property  have  brought  about,"  that  is,  for  example, 
laws  levying  a  progressive  income  tax  or  regulating  the  hours 
of  labor,  as  involving  "confiscation  or  the  destruction  of  the 
principle  of  private  property."  2  It  is  this  negative  conception 
of  liberty  and  justice  that  was  repudiated  by  Justice  Holmes  in 
the  dissenting  opinion,  already  quoted,  in  the  New  York  bakers' 
case. 

The  twentieth  century  has  brought  a  more  positive  conception 

1  Carter,  Law,  its  Origin,  Growth,  and  Function,  p.  337. 

1  See  W.  H.  Taft,  "Recent  Criticisms  of  the  Federal  Judiciary,"  in  Report  of  the 
American  Bar  Association,  1895,  p.  246. 


THE  STATE  JUDICIARY  379 

of  liberty.  It  is  coming  to  mean  more  than  the  mere  absence  of 
physical  restraints  upon  the  physical  person,  or  of  statutory  re- 
straints upon  the  legal  person.  Real  Liberty  is  not  the  antithesis 
of  social  control.  Rather,  rightly  directed  and  effective  social 
control  is  the  condition  of  such  liberty.  Thus  the  modern  con- 
ception of  liberty  is  bound  up  with  the  modern  conception  of 
social  justice,  and  social  justice  is  understood  to  be  an  end  in 
itself,  not  merely  another  name  for  justice  to  individuals.  It 
involves  the  idea  of  the  state  itself  as  a  person,  as  a  subject  of 
rights,  the  only  idea  of  the  state  consistent  with  the  origin  of 
the  American  states  and  the  nature  of  their  political  institutions. 
Thus  it  becomes  possible  for  intelligent  men  sincerely  to  advocate 
plans  to  equalize  at  least  some  of  the  inequalities  which  the  rights 
of  free  contract  and  private  property  have  brought  about,  with- 
out doing  violence  to  their  faith  in  the  fundamental  principles 
of  American  government.  Liberty  of  contract,  in  particular, 
that  late  nineteenth  century  product  of  juristic  reasoning,  now 
tends  to  be  conceived,  not  as  an  inalienable  part  of  the  citizen's 
constitutional  liberty,  but  as  a  means  to  such  liberty,  to  be  pro- 
tected only  in  so  far  as  it  effectually  serves  that  end.  State 
legislatures  are  now  enacting  more  freely  than  ever  before  meas- 
ures restricting  in  various  ways  the  liberty  of  contract,  and  these 
measures  in  increasing  numbers  are  successfully  withstanding 
the  process  of  judicial  review.  The  supreme  court  of  Oregon,  to 
mention  only  one  of  the  states,  has  recently  sustained  statutes 
providing  for  the  fixing  of  minimum  wages  for  women  employed 
in  industry  and  prescribing  a  maximum  limit  upon  the  hours  of 
labor  of  wage-earning  men.1  A  few  years  ago  such  statutes 
would  doubtless  have  been  summarily  vetoed  by  the  courts  in 
every  state  in  the  Union.  Though  there  is  still  much  uncertainty 
in  the  attitude  of  the  courts  towards  statutes  involving  limitations 
upon  liberty  of  contract,  on  the  whole  the  twentieth  century  con- 
ception of  liberty  clearly  tends  to  prevail  in  the  halls  of  justice 
as  well  as  in  those  of  legislation.2 

1  See  Stettler  v.  O'Hara,  69  Ore.  519  (1914),  and  State  v.  Bunting,  71  Ore.  259 
(1914). 

1  See  F.  Frankfurter,  "Hours  of  Labor  and  Realism  in  Constitutional  Law," 
29  Harvard  Law  Review,  p.  353. 


380        STATE   GOVERNMENT  IN  UNITED  STATES 

CONCLUSION 

The  American  doctrine  of  judicial  review  is  fundamentally 
sound.  In  times  like  the  present,  however,  when  public  opinion 
on  matters  of  vital  interest  is  undergoing  a  radical  change,  the 
judiciary  are  put  to  a  severe  test.  They  are  not  expected  to  be 
the  first  by  whom  new  ideas  are  introduced.  It  is  their  function 
to  compel  due  deliberation  on  the  part  of  legislators  and  of  the 
people  when  new  social  and  economic  conditions  seem  to  demand 
new  principles  of  legislation.  But  neither  should  the  courts  be 
the  last  to  lay  the  old  ideas  aside.  The  judicial  veto  is  one  of  the 
greatest  of  political  powers  and  should  be  exercised  with  corre- 
sponding caution.  It  is  easy  for  learned  judges  to  believe  that 
they  have  a  mission  to  save  the  people  from  the  consequences  of 
their  own  supposed  folly,  but  they  should  not  forget  that  both 
the  state  and  federal  courts  have  not  generally  been  happy  in 
their  boldest  political  decisions.  In  general,  the  people  profit 
most  from  their  own  experience  with  unwise  legislation,  and  will 
find  an  effective  remedy  at  the  polls.  The  courts  may  properly 
defer  the  enforcement  of  legislation  that  seems  to  them  clearly 
unreasonable,  when  passed  in  response  to  a  quickly  formed  and 
untested  public  opinion,  until  that  opinion  has  been  seasoned  by 
further  reflection,  but  the  strong  and  preponderant  opinion  of 
the  people  must,  without  too  much  delay,  be  able  to  prevail. 
Since  the  time  of  Lincoln  it  has  been  settled  that  the  people 
themselves  must  be  the  final  arbiters  of  their  own  constitutions. 
In  recent  years  the  courts  have  been  freely  criticized  for  their 
slowness  to  discard  the  late  nineteenth  century  conception  of 
liberty  and  justice.  It  was  right,  however,  that  they  should 
be  somewhat  slower  than  the  legislatures  in  adopting  the  new 
principles  of  legislation.  It  was  also  right  that  they  should  be 
criticized  for  their  slowness,  for  in  the  exercise  of  their  political 
powers  they  are  amenable,  like  the  other  organs  of  government, 
to  public  opinion,  and  ultimately  must  be  guided  by  it. 

The  system  of  judicial  organization  under  which  the  judges 
exercise  their  political  powers  most  effectively  and  with  least 
friction  is  that  originally  adopted  in  Massachusetts.  Appoint- 
ment by  the  governor  and  tenure  during  good  behavior  have 
proved  well  suited  for  the  maintenance  of  an  able  and  impartial 


THE  STATE  JUDICIARY  381 

judiciary.  The  system  of  removal  by  the  governor  upon  ad- 
dress by  a  majority  of  the  legislature  has  worked  better  than  the 
usual  process  of  impeachment.  It  has  facilitated  the  retire- 
ment of  a  few  undesirable  judges  without  undermining  the  inde- 
pendence of  the  judiciary.1  The  system  of  advisory  opinions  has 
also  worked  well.  The  Massachusetts  supreme  court  vetoes 
fewer  legislative  enactments  than  the  supreme  court  of  any 
other  of  the  larger  states.  This  relatively  infrequent  use  of 
the  judicial  veto  may  be  partly  explained  by  the  absence  of 
most  of  the  constitutional  limitations  upon  legislative  powers 
and  procedure  which  abound  in  the  constitutions  of  many 
states.  But  it  is  to  no  inconsiderable  degree  the  result  of  the 
legislative  and  executive  practice  of  calling  upon  the  supreme 
court  for  their  opinion  concerning  the  constitutionality  of  pro- 
posed measures,  when  their  constitutionality  is  questionable,  in 
advance  of  their  enactment  into  law.  Often  there  are  several 
such  requests  for  advisory  opinions  in  the  course  of  a  single 
legislative  session.  The  opinion  of  the  court  is  invariably  ac- 
cepted. When  the  opinion  is  adverse  to  the  constitutionality 
of  a  proposed  measure,  the  legislature  may,  if  it  chooses,  proceed 
thereafter  by  means  of  a  constitutional  amendment.  This  has 
been  done  in  several  cases.  More  frequently  the  measure  is 
dropped.  Doubtless,  it  would  not  be  desirable  to  require  the 
courts  in  most  states  to  pass  upon  all  the  constitutional  questions 
that  might  arise  prior  to  final  action  in  the  legislature  or  by  the 
executive.  Questions  concerning  the  form  of  legislation  or 
legislative  procedure  might  better  be  disposed  of  in  some  more 
summary  way,  for  example,  upon  the  opinion  of  the  attorney- 
general,  as  already  suggested.  But  prior  to  final  legislative 
action  in  any  state  upon  those  measures  which  on  other  grounds 
may  incur  a  judicial  veto,  the  opinion  of  the  judges  would  often 
be  timely  and  helpful. 

JUDICIAL  CONTROL  OF  ADMINISTRATION 

The  power  of  the  judiciary  to  review  the  acts  of  administrative 
officers  is  fundamentally  the  same  as  that  to  review  acts  of  legis- 

1  See  L.  A.  Frothingham,  A  Brief  History  of  the  Constitution  and  Government  of 
Massachusetts,  pp.  32-38. 


382       STATE  GOVERNMENT  IN  UNITED  STATES 

lation.  But  there  are  certain  important  differences  in  the  man- 
ner in  which  the  power  of  judicial  review  is  exercised  in  the  two 
classes  of  cases. 

First,  the  legislatures  derive  all  their  powers  directly  from  the 
state  and  federal  constitutions,  but  administrative  officers  derive 
their  powers  in  part  directly  from  the  constitutions  and  in  part 
through  legislative  enactments.  -  Consequently  the  courts,  when 
they  review  the  validity  of  an  administrative  act,  have  to  con- 
sider not  only  the  constitutional  but,  in  most  cases,  also  the 
statutory  powers  of  the  officer  responsible  for  the  act.  Besides 
the  specific  constitutional  limitations  upon  legislative  power 
and  procedure  which  must  be  considered  by  the  courts  when  they 
review  the  validity  of  the  acts  committed  by  administrative 
officers  under  authority  of  legislative  enactments,  there  are  also 
two  general  limitations  of  very  great  importance.  The  first 
is  the  prohibition  against  the  delegation  of  legislative  powers 
to  non-legislative  bodies.  The  Federal  Constitution  expressly 
declares  that  "all  legislative  powers  herein  granted  shall  be 
vested  in  a  congress  of  the  United  States."  Likewise  in  the 
states  all  legislative  powers,  unless  otherwise  ordered  by  the  con- 
stitution, must  be  exercised  exclusively  by  the  state  legislatures. 
The  second  general  limitation  is  the  prohibition  against  the 
vesting  of  judicial  powers  in  administrative  officers  or  of  admin- 
istrative powers  in  the  judiciary.  The  judiciary,  therefore,  in 
inquiring  into  the  validity  of  any  administrative  act  which  has 
become  the  subject  of  litigation,  must  first  of  all  determine 
whether  it  is  in  fact  an  act  of  administration. 

Though  a  legislature  may  not  delegate  its  purely  legislative 
powers  to  administrative  officers,  it  may  lay  down  general  rules 
of  action  under  which  administrative  officers  may  proceed,  and 
it  may  require  such  officers  to  apply  those  rules  to  particular 
cases.  Thus,  a  legislature  may  not  authorize  a  public  service 
commission  to  regulate  the  rates  of  a  public  service  corporation 
upon  any  principles  and  in  any  manner  the  commission  pleases, 
but  it  may  declare  that  rates  in  general  shall  be  just  and  reason- 
able and  that  a  commission  shall  determine  what  rates  in  particu- 
lar cases  are  just  and  reasonable.  But  the  action  of  that  com- 
mission is  subject  to  the  rule  of  reason,  just  as  would  be  the  action 
of  the  legislature  itself,  if  the  legislature  sought  to  exercise  directly 


THE  STATE  JUDICIARY  383 

the  power  to  prescribe  specific  rates.  The  courts  may  set  aside 
the  findings  of  such  a  commission,  if  in  the  opinion  of  the  courts 
the  findings  are  excessively  unreasonable  and  arbitrary,  just  as 
they  might  set  aside  legislative  enactments  under  similar  circum- 
stances. The  tests  of  reasonableness  in  the  regulation  of  rates 
may  be  defined  in  detail  in  legislative  enactments.  In  practice 
they  are  generally  left  to  be  worked  out  by  the  commissions, 
subject  to  the  approval  of  the  courts.  As  yet  neither  the  courts 
nor  the  commissions  have  reached  any  final  conclusions  concern- 
ing the  tests  that  should  be  applied.  Doubtless  partly  for  that 
reason,  the  courts  have  disapproved  many  of  the  findings  of  the 
commissions  and  have  refused  to  enforce  the  orders  based  there- 
on. But  in  the  review  of  the  findings  of  administrative  bodies  of 
longer  standing  and  more  settled  practice  than  the  public  service 
commissions,  the  courts  exercise  their  veto  less  freely.  They  are 
less  likely,  for  example,  to  set  aside  a  valuation  fixed  by  a  state 
board  of  assessors  than  one  fixed  by  a  public  service  commission, 
although  the  findings  of  the  former  may  be  no  more  conclusive 
in  law  than  those  of  the  latter.  It  is  impossible  to  lay  down  any 
general  rule  indicating  how  far  the  courts  will  go  in  reviewing  the 
reasonableness  of  the  determinations  of  administrative  officers.1 
But,  though  the  courts  have  not  often  refused  to  review  decisions 
rendered  in  the  first  instance  by  executive  officers,  they  rarely 
consent  to  exercise  jurisdiction  when  their  decisions  are  review- 
able  by  administrative  officials. 

There  is  really  nothing  new  in  the  modern  theory  of  the  judicial 
review  of  administrative  determinations  by  administrative  bodies, 
such  as  railroad  and  public  service  commissions.  The  funda- 
mental principles  are  the  same  as  those  underlying  the  review  by 
the  courts  of  the  validity  of  the  acts  of  any  administrative  officer. 
The  action  of  the  policeman  who  is  charged  to  do  whatever  is 
necessary  and  proper  for  the  maintenance  of  the  peace,  and  who 
uses  force  against  disturbers  thereof,  is  just  as  much  subject  to 

1  The  federal  courts,  for  example,  have  said  they  will  not  review  at  all  the  deci- 
sions of  immigration  officers  with  respect  to  the  citizenship  of  persons  applying  for 
admission  to  the  United  States  (U.  S.  ».  Ju  Toy,  i<)8  U.  S.  253),  hut  they  will  take 
extraordinary  pains  in  reviewing  the  decisions  of  patent  officers  with  respect  to  the 
patentability  of  inventions  (U.  S.  v.  Butterworth,  112  U.  S.  50;  U.  S.  v.  Duell,  172 
U.  S.  576).  See  T.  R.  Powell,  "  Conclusiveness  of  Administrative  Determinations 
in  the  Federal  Government,"  in  Am.  Pol.  Set.  Rev.,  i,  no.  3  (August,  1907). 


384       STATE  GOVERNMENT  IN  UNITED  STATES 

review  by  the  courts  as  that  of  the  public  service  commission 
which  orders  a  reduction  of  rates.  The  public  service  commis- 
sion, like  the  policeman,  is  a  great  convenience  to  the  public, 
because  it  relieves  the  ordinary  citizen  of  responsibility  for  the 
performance  of  duties  which  he  is  not  specially  qualified  to  per- 
form, and  because  it  can  devote  its  undivided  attention  to 
problems  to  which  he  can  devote  at  best  only  an  intermittent 
attention.  If  there  were  no  public  service  commissions,  a  citizen 
might  order  a  public  service  corporation  possessing  a  virtual 
monopoly  in  his  locality  to  reduce  excessively  high  rates  to  a 
reasonable  level,  just  as  a  citizen,  if  there  were  no  policeman  at 
hand,  might  order  a  trespasser  off  his  premises.  In  either  case, 
if  a  dispute  arose,  there  would  be  an  opportunity  for  appeal 
to  the  courts  for  the  protection  of  the  rights  of  either  party.  A 
trustworthy  public  service  commission,  however,  like  a  police- 
man, is  more  serviceable  in  such  cases  than  the  courts,  for  its 
authority  can  be  more  easily  and  more  speedily  invoked,  its 
operations  are  subject  to  fewer  procedural  restraints,  and  its 
decisions  are  or  ordinarily  ought  to  be  equally  acceptable  to  both 
parties.  The  corner  loafer  has  as  much  right  to  appeal  from  an 
order  of  a  traffic  policeman  to  move  on  as  the  public  service 
corporation  from  that  of  a  commission  to  reduce  its  rates.  If  he 
exercises  his  right  less  frequently,  the  reason  is  either  that  the 
decisions  of  the  policeman  are  more  trustworthy  than  those  of 
the  public  service  commission,  or  that  the  authority  of  such  com- 
missions is  comparatively  new  and  business  men  are  not  yet 
accustomed  to  it,  or  that  the  public  service  corporations  expect 
to  gain  more  by  delay  than  they  can  lose  by  litigation. 

WORKING  OF  JUDICIAL  CONTROL  OF  ADMINISTRATION 

There  are  important  differences  in  effect,  if  not  in  law,  be- 
tween the  decisions  of  policemen  and  public  service  commissions. 
The  decision  of  a  policeman,  dealing  with  a  disturbance  of  the 
peace,  must  be  made  and  enforced  immediately.  That  of  the 
public  service  commission,  dealing  with  an  application  for  a  re- 
duction or  increase  of  transportation  rates,  may  be  delayed  until 
all  pertinent  facts  have  been  examined  with  care.  The  policeman 
must  rely  solely  on  his  own  knowledge  and  judgment.  The  com- 


THE  STATE  JUDICIARY  385 

mission  can  obtain  assistance  from  trained  accountants  and  en- 
gineers and  experts  of  all  kinds.  The  decision  of  the  policeman 
is  informal  and  applies  only  to  the  particular  case.  That  of  the 
commission  becomes  a  matter  of  record  and  may  serve  as  a 
precedent  for  future  cases  of  similar  character.  Thus  the  com- 
mission tends  to  become  a  rule-making  body,  whose  orders 
operate  like  the  ordinances  of  a  municipal  corporation.  In- 
deed, many  executive  officers  and  boards,  created  in  recent  years, 
have  been  expressly  authorized  to  issue  special  regulations  or 
ordinances  with  the  force  of  law.  Thus,  for  example,  health  and 
labor  laws,  providing  that  living  and  working  conditions  shall 
be  reasonably  safe  and  wholesome,  may  be  put  into  practical 
effect  through  sanitary  or  industrial  codes  adopted  and  promul- 
gated by  authority  of  state  boards  of  health,  or  public  health 
councils,  or  industrial  welfare  commissions,  or  other  similar 
administrative  bodies.  There  is  no  more  significant  feature 
in  the  recent  history  of  public  administration  in  the  states  than 
the  rapid  development  of  such  rule-making  administrative  bodies, 
either  composed  of  experts  in  the  branches  of  administration  con- 
fided to  their  care  or  able  to  command  the  services  of  experts. 
Had  the  original  state  executive  councils  generally  survived, 
they  might  have  developed  into  rule-making  bodies  of  this  type. 
Actually,  however,  the  need  for  machinery  for  the  elaboration  of 
general  rules  of  law  into  special  rules  of  administrative  action 
has  been  met  by  the  creation  of  a  series  of  special  administrative 
boards. 

The  chief  difference  between  the  judicial  review  of  the  ad- 
ministrative decisions  of  public  service  commissions  and  those  of 
policemen  is  not  in  the  theory  but  in  the  practice.  Appeal  from 
the  decision  of  a  policeman,  when  taken  at  all,  is  taken  after  the 
decision  has  been  executed,  and  the  material  facts  in  the  case 
are  reexamined  and  finally  determined  by  a  jury.  Appeal  from 
the  decision  of  a  public  utilities  commission  is  usually  taken  be- 
fore the  decision  is  executed,  and  the  material  facts  in  the  case 
are  determined  by  the  judges.  The  former  class  of  cases  consist 
of  common  law  actions  of  tort  or  arise  under  the  criminal  law. 
The  latter  consist  of  applications  for  extraordinary  equitable 
remedies,  chiefly  by  means  of  writs  of  mandamus  or  injunction. 
In  general  the  practice  is  more  important  than  the  theory.  The 

2C 


386       STATE   GOVERNMENT  IN  UNITED  STATES 

motorist,  who  violates  a  speed  regulation  issued  by  a  highway 
commission,  is  summarily  prosecuted  under  the  criminal  law, 
but  a  bill-poster,  who  erects  an  advertising  sign  in  such  a  manner 
as  to  violate  an  anti-billboard  regulation  issued  by  a  park  com- 
mission, is  more  likely,  if  the  sign  be  one  of  value,  to  apply  for 
an  injunction  to  restrain  the  agents  of  the  commission  from  inter- 
fering therewith  until  the  highest  courts  have  pronounced  judg- 
ment upon  the  matter.  On  the  other  hand,  if  the  sign  be  a  mere 
handbill  of  little  value,  apparently  it  may  be  summarily  destroyed 
by  agents  of  the  commission  without  any  judicial  process  what- 
soever.1 

In  cases  where  the  reasonableness  of  an  administrative  decision 
is  finally  determined  by  a  jury,  the  exercise  of  judicial  control 
over  administration  becomes  a  mere  incident  in  the  ordinary 
administration  of  justice.  But  in  cases  where  the  reasonableness 
of  an  administrative  decision  is  finally  determined  by  the  judges 
themselves,  the  exercise  of  judicial  control  over  administration 
may,  and  in  many  modern  cases  does,  involve  the  judges  in 
exceedingly  complicated  and  technical  investigations.  In 
general,  however,  judges  who  find  themselves  compelled  to  in- 
vestigate the  facts,  in  the  light  of  which  the  reasonableness  of 
an  order  is  to  be  determined,  are  too  busy  to  make  the  necessary 
investigations.  Thus,  the  review  of  the  order  of  a  railroad 
commission  that  a  certain  rate,  declared  to  be  unreasonable,  be 
reduced  or  of  a  health  or  dairy  commission  that  the  use  of  a 
certain  food  or  drug,  declared  to  be  impure,  be  discontinued 
throws  a  burden  upon  the  courts  which  they  cannot  bear.  The 
facts  are  highly  technical,  their  own  training  has  been  along  other 
lines,  and  they  cannot  come  to  a  proper  decision  without  assist- 
ance. Either  they  must  rely  on  the  reports  of  special  referees 
or  masters,  appointed  by  themselves  to  ascertain  the  facts  and 
to  recommend  findings  for  their  approval,  or  they  must  rely  on 
the  judgment  of  the  regular  administrative  officers.  In  some 
classes  of  cases,  where  till  recently  judges  have  been  compara- 
tively quick  to  question  the  reasonableness  of  administrative  de- 
terminations, notably  in  cases  involving  the  orders  of  public 
service  commissions,  the  courts  now  seem  more  disposed  to  rely 

1  Lawton  v.  Steele,  119  N.  Y.  226.  Cf.  F.  J.  Goodnow,  Principles  of  the  Admin- 
istrative Law  of  the  United  Stales,  pp.  356-366. 


THE  STATE  JUDICIARY  387 

upon  the  findings  of  the  regular  administrative  officers.  This 
is  undoubtedly  a  wholesome  tendency  in  all  cases  where  the 
administrative  officials  are  appointed  on  the  ground  of  fitness 
and  protected  against  undue  political  influence. 

The  question  of  the  finality  of  administrative  determinations 
of  fact  became  most  acute  in  connection  with  the  regulation  of 
railway  rates  by  state  commissions.     After  a  struggle,  the  right 
of  the  courts  to  exercise  the  power  of  review  was  universally 
conceded.     In  some  states,  however,  it  is  wisely  confined  to  the 
highest  court  in  the  state.     Thus  much  time  and  expense  is  saved 
by  the  elimination  of  trials  in  the  lower  courts,  from  which  in 
important  cases  appeals  are  almost  certain  to  be  taken  to  the 
court  of  last  resort.     In  some  states  the  decisions  of  state  com- 
missions may  be  reviewed  only  by  writs  of  error  or  certiorari  or 
by  direct  appeal  from  the  order  of  the  commission.     Thus  the 
final  decision  may  be  reached  promptly  without   awaiting  the 
issue  of  litigation  over  attempts  to  enforce  the  administrative 
order  by  the  regular  judicial  process.     Many  states  limit  the 
period  after  the  issuance  of  an  order  during  which  judicial  review 
thereof  may  be  sought.     Many  hasten  the  final  determination  of 
such  appeals  by  granting  them  preference  over  other  classes  of 
cases.     Most  of  the  states  declare  the  findings  of  the  commissions 
to  be  prima  facie  reasonable,  so  that  the  burden  of  proving  their 
unreasonableness  lies  upon  the  party  which  refuses  to  accept 
them.     Some  provide  that  no  evidence  may  be  presented  to  the 
courts  which  has  not  been  first  presented  to  the  commission, 
and  that  cases  in  which  new  evidence  is  introduced  in  court  shall 
be  remanded  to  the  commission  for  disposition  in  accordance 
with  the  new  evidence.     In  a  few  states,  corporations  which 
refuse  to  accept  an  order  of  a  commission  are  liable  to  a  heavy 
fine  for  each  day  that  they  fail  to  follow  the  same,  provided  that 
the  order  is  ultimately  sustained  by  the  courts,  or  are  required 
to  file  a  bond  sufficient  to  repay  the  difference  between  the  old 
rate  and  the  new  to  all  shippers  or  passengers  who  pay  an  ex- 
cessive rate  after  a  commission  has  ordered  a  reduction.     But 
in  many  states  an  appeal  to  the  courts  operates  to  stay  the  order 
of  the  commission.1    In  general,  there  is  a  distinct  tendency  to 
discourage  the  courts  from  exercising  too  aggressively  the  power 

1  See  Maxwell  Ferguson,  Stale  Regulation  of  Railroads  in  the  South,  pp.  212-217. 


388       STATE  GOVERNMENT  IN  UNITED  STATES 

of  reviewing  on  the  ground  of  unreasonableness  the  validity  of 
administrative  findings  and  orders. 

Besides  the  substantive  limitations  upon  the  power  of  ad- 
ministrative officers  and  bodies  to  issue  ordinances  and  perform 
special  administrative  acts,  there  are  also  certain  procedural 
limitations  which  may  not  be  disregarded  without  impairing 
the  validity  of  such  action.  Public  service  commissions,  for 
example,  are  bound  to  grant  a  hearing  to  all  parties  to  be  directly 
affected  by  a  proposed  order.  This  hearing  must  be  adequate 
and  fair.  The  findings  must  not  be  contrary  to  the  evidence. 
The  order  must  be  supported  by  the  facts  as  found.1  Parties 
must  have  proper  notice  of  proceedings  which  may  directly  affect 
them,  must  be  apprised  of  the  evidence  submitted  or  to  be  con- 
sidered in  the  case,  and  must  be  granted  opportunity  to  cross- 
examine  witnesses,  to  inspect  documents,  and  to  offer  evidence 
in  further  explanation  or  rebuttal.2  The  procedural  limitations 
upon  administrative  officers  and  bodies  vary  widely  in  different 
cases.  In  many  cases  they  are  prescribed  by  statute.  In 
others  they  are  left  to  the  judgment  of  the  officers,  subject  to 
judicial  review  and  the  nullification  of  arbitrary  and  unlawful 
acts.  Perhaps  in  no  case  are  the  limitations  more  rigorous  than 
in  that  of  public  service  commissions.  Certainly  in  no  case  are 
they  so  rigorous  as  in  that  of  a  strictly  judicial  tribunal.  Ad- 
ministrative action  is  designed  to  be  more  summary  and  more 
flexible  than  that  of  the  courts.  But  the  rights  of  the  people 
may  not  be  determined  by  mere  administrative  fiat.  No  adminis- 
trative officer  or  body  can  set  itself  up  as  a  benevolent  despotism. 
Administrative  action,  like  the  action  of  the  coordinate  branches 
of  government,  must  be  justified  as  one  phase  of  the  reign  of  law. 


DISTINCTION  BETWEEN  MINISTERIAL  AND  DISCRE- 
TIONARY ACTS 

A  second  important  difference  between  the  exercise  of  judicial 
control  over  administration  and  over  legislation  results  from  the 

1  See  Interstate  Commerce  Commission  v.  Louisville  and  Nashville  Railroad, 
227  U.  S.  88  (1913).  See  also  Bruce  Wyman,  "Jurisdictional  Limitations  upon 
Commission  Action,"  27  Harvard  Law  Review,  p.  565. 

*  See  Wyman,  loc.  cit.,  p.  567. 


THE  STATE  JUDICIARY  389 

practice  of  the  courts  in  dividing  administrative  acts  into  two 
classes,  discretionary  and  ministerial  acts.  It  is  not  at  all 
clear  just  where  the  line  of  division  runs.1  In  a  general  way  it 
may  be  said,  that  in  the  performance  of  acts  of  discretion  ad- 
ministrative officers  are  unrestricted  within  the  limits  of  their 
constitutional  and  statutory  powers,  except  by  the  requirement  of 
due  process  of  law  and  the  rule  of  reason.  But  in  the  performance 
of  ministerial  acts  administrative  officers  have  no  discretionary 
authority.  In  the  famous  case  of  Marbury  v.  Madison,  for 
example,  the  United  States  Supreme  Court  held  that  the  signa- 
ture of  the  commission  of  a  justice  of  the  peace  in  the  District  of 
Columbia  by  the  President  of  the  United  States  completed  the 
act  of  appointment,  and  that  the  delivery  of  the  commission  to 
the  person  named  therein  was  a  purely  ministerial  act,  which  it 
was  the  duty  of  the  Secretary  of  State  to  perform.  Apparently 
Chief  Justice  Marshall  would  not  have  hesitated  to  command 
Madison  to  deliver  the  commission,  had  he  not  found  that  the 
act  of  Congress  giving  the  Supreme  Court  original  jurisdiction 
over  the  case  was  unconstitutional.  Thus  it  becomes  possible 
for  the  courts  to  control  administration,  not  only  by  refusing  to 
give  legal  effect  to  administrative  acts  unauthorized  by  the  consti- 
tution or  the  laws,  but  also  by  commanding  administrative  officers 
to  perform  or  not  to  perform  such  acts  as  in  the  opinion  of  the 
courts  they  have  no  right  to  refuse  or  to  attempt  to  perform. 
Such  control,  however,  is  suitable  only  for  inferior  administrative 
officers,  and  is  rarely  exercised  in  other  cases.2 

Discretionary  administrative  acts  may  be  further  divided  into 
two  classes,  those  which  are  purely  administrative  and  those 
which  are  political  in  character.  With  the  action  by  competent 
executive  officers  in  the  latter  class  of  cases  the  federal  courts  at 
least  will  not  interfere  at  all.  Thus  the  President  may  decide 
which  of  two  contesting  state  governments  shall  be  recognized 
as  the  constitutional  government  of  the  state,  and  the  Supreme 
Court  will  grant  no  relief  to  those  who  question  the  reasonableness 

1  Cf.  Kendall  v.  U.  S.,  12  Peters,  524,  and  Stokes  r.  Kendall,  3  How.  37.    See 
also  F.  J.  Goodnow,  Principles  of  the  Administrative  Law  of  the  United  Stales,  pp. 
399-400.    This  treatise  contains  the  best  summary  of  the  law  governing  judicial 
control  of  administration.     See  especially  hooks  v  and  vi. 

2  J.  A.  Fairlie,  "The  State  Governor,"  in  10  Michigan  Lav:  Review,  nos.  5  and  6, 
under  caption,  "Judicial  Control  of  the  Governor." 


390       STATE   GOVERNMENT  IN  UNITED   STATES 

of  his  decision.1  The  same  rule  applies  to  certain  decisions  by 
state  authorities.  For  example  the  Indiana  legislature  provided 
by  an  act  adopted  in  191 1  for  the  submission  of  a  new  constitution 
to  the  people  of  the  state  at  the  general  election  of  1912,  although 
the  existing  constitution  granted  no  authority  to  the  legislature 
to  submit  a  general  revision  of  the  constitution  to  the  people  and 
prescribed  a  different  procedure  for  the  submission  of  specific 
amendments.  Upon  suit  by  a  taxpayer  to  enjoin  the  governor 
and  other  members  of  the  state  board  of  elections  from  submitting 
the  proposed  new  constitution,  the  state  supreme  court  granted 
the  injunction.  An  appeal  was  taken  to  the  Supreme  Court 
of  the  United  States  on  the  ground  that  the  judgment  of  the 
state  court  in  effect  denied  to  the  state  the  republican  form  of 
government,  since  the  interference  of  the  judiciary  with  the 
action  of  the  coordinate  branches  prevented  the  people  from 
adopting,  if  desired,  the  proposed  new  constitution.  The  federal 
Supreme  Court  declared  that  the  claim  that  the  decision  of  the 
state  court  denied  to  the  state  a  republican  form  of  government 
did  not  present  a  justiciable  controversy,  and  dismissed  the 
case  for  want  of  jurisdiction.2  Thus  the  governor  was  apparently 
free  to  obey  either  the  command  of  the  legislature  expressed  in 
the  form  of  the  statute  or  that  of  the  state  supreme  court  ex- 
pressed in  the  form  of  an  injunction.  Whichever  horn  of  the 
dilemma  had  been  chosen  by  him,  the  federal  court  would  not 
have  interfered.  But  the  line  of  division  between  political  and 
administrative  acts  is  no  clearer  than  that  between  discretionary 
and  ministerial  acts. 

It  has  already  been  pointed  out  that  judicial  control  of  ad- 
ministration has  been  the  principal  centralizing  force  in  state 
administration  since  the  middle  of  the  nineteenth  century. 
Its  limitations,  as  a  means  of  imparting  spirit  and  vigor  to  ad- 
ministration, have  also  been  indicated.  The  truth  is  that  the 
courts  are  not  fitted  to  perform  all  the  duties  that  have  fallen 
upon  them  in  connection  with  the  interpretation  and  enforcement 
of  modern  economic  and  social  legislation.  Judges  must  be 
specially  learned  in  the  principles  of  the  law,  and  cannot  hope 
to  become  equally  expert  in  all  the  branches  of  public  administra- 

1  Luther  v.  Borden,  7  How.  i. 

2  Marshall  v.  Dye,  231  U.  S.  250. 


THE  STATE  JUDICIARY  391 

tion.  The  regulation  of  the  rates  and  conditions  of  service  of 
public  utilities,  of  the  construction  and  manner  of  operation  of 
factories,  shops,  and  mills,  of  the  production  and  sale  of  food  and 
drugs,  to  mention  only  a  few  of  the  rapidly  growing  subjects  of 
modern  economic  and  social  legislation,  requires  special  technical 
knowledge  and  skill.  The  requirements  of  such  branches  of 
public  administration  can  be  adequately  met  only  by  specially 
trained  men  as  administrators,  just  as  the  efficient  administration 
of  justice  in  ordinary  litigation  requires  specially  trained  men  as 
judges.  The  real  problem  is  to  procure  such  men  for  the  public 
service.  The  habit  of  looking  to  the  courts  for  the  final  deter- 
mination of  important  administrative  questions  does  not  solve 
the  problem.  It  merely  shifts  its  location.  The  courts  have 
been  just  as  much  puzzled  in  trying  to  administer  this  modern 
legislation  as  other  bodies  of  men  without  proper  technical 
training.  The  Supreme  Court  of  the  United  States,  for  example, 
to  say  nothing  of  the  state  courts,  has  been  on  both  sides  of 
several  of  the  difficult  questions  that  have  arisen  in  the  adminis- 
tration of  the  laws  regulating  railroad  rates.1 

Thus  the  same  result  is  reached  in  the  study  of  judicial  control 
of  administration  as  in  that  of  the  judicial  control  of  legislation. 
No  plan  for  correcting  the  defects  of  the  existing  system  is  sound 
which  proposes  to  destroy  the  power  of  judicial  review.  The 
activity  of  the  state  courts  in  the  control  of  administration  springs 
from  excessive  administrative  weakness,  not  from  excessive 
judicial  strength.  No  plan  is  adequate  which  proposes  merely 
to  increase  the  responsibility  of  the  state  judiciaries  to  the 
electorates.  The  action  of  the  state  courts  is  itself  subject  to 
review  by  the  federal  courts  in  all  cases  involving  any  alleged 
deprivation  of  liberty  or  property  without  due  process  of  law, 
and  the  federal  courts  cannot  be  touched  by  any  state  reform 
such  as  the  recall  of  judges  or  of  judicial  decisions.  The  most 
promising  plan  for  correcting  the  defects  of  the  existing  system 
is  to  increase  the  efficiency  of  the  administrative  branch  of  the 
state  governments.  This  can  be  done  only  by  the  further  re- 
form of  the  methods  of  selecting  administrative  officers  and  by 
the  further  centralization  and  integration  of  state  administration. 

1  Cf.  for  instance,  Minneapolis  and  St.  Louis  Railway  v.  Minnesota,  186  U.  S. 
257  (1902)  and  Northern  Pacific  Railway  v.  North  Dakota,  236  U.  S.  585  (1915). 


392       STATE  GOVERNMENT  IN  UNITED  STATES 

REPRIEVES  AND  PARDONS 

The  power  to  grant  reprieves  and  pardons,  vested  in  the  state 
executives,  was  originally  deemed,  like  the  power  of  impeachment 
vested  in  the  legislatures,  one  of  the  essential  factors  in  the  estab- 
lishment of  a  proper  balance  between  the  three  departments  of 
government.  Just  as  the  power  of  impeachment  was  expected 
to  provide  a  means  of  preventing  executive  and  judicial  officers 
from  playing  the  tyrant  in  general,  so  the  power  to  grant  reprieves 
and  pardons  was  relied  on  to  prevent  the  perpetuation  of  injustice 
in  particular  cases. 

It  cannot  be  said  that  the  history  of  the  reprieving  and  pardon- 
ing power  has  justified  the  anticipations  of  the  Fathers,  any 
more  than  has  that  of  impeachment.  But  it  has  been  a  very 
different  history.  The  power  of  impeachment  has  been  so  little 
used  that  it  has  become  almost  obsolete.  The  power  of  reprieve 
and  pardon,  on  the  contrary,  has  been  used  too  much.  It  early 
became  evident  that  governors  were  under  great  temptation 
to  use  it  with  excessive  liberality,  and  that  in  practice  the  power 
was  seriously  abused.1  It  has  sometimes  been  used  for  purely 
political  purposes.  Thus,  the  governor  of  Arkansas  a  few  years 
ago  pardoned  some  three  hundred  prisoners  at  one  time,  with 
most  dramatic  effect,  expressly  in  order  to  call  public  attention 
to  the  iniquity  of  the  contract  labor  system  as  employed  in  that 
state.  It  has  probably  been  used  more  frequently  for  partisan 
and  personal  ends.  Many  states  therefore  have  provided  that 
the  governor  may  grant  pardons  only  upon  the  recommendation 
of  a  special  board  or  "in  conjunction  with"  a  board  of  which  he 
may  be  a  member.  The  gradual  decrease  in  the  severity  of 
penal  methods,  and  more  recently  the  introduction  of  the  prac- 
tice of  parole,  have  tended  to  deprive  the  pardoning  power  of  its 
reason  for  being.  At  the  present  time  the  power  to  pardon  plays 
no  part  in  the  maintenance  of  the  balance  between  the  depart- 
ments, and  it  is  doubtful  whether  there  is  any  good  reason  for 
vesting  such  a  power  in  the  hands  of  an  officer,  like  the  governor, 
primarily  political  in  character.  Properly  constituted  boards  of 
parole  are  proving  far  more  reliable  agencies  for  the  exercise  of  a 

1  See  Francis  Lieber,  "  Reflections  on  the  Present  Constitution  of  New  York," 
1867,  in  his  Miscellaneous  Writings,  vol.  ii,  pp.  185-189. 


THE  STATE  JUDICIARY  393 

judicious  clemency  than  the  governors  ever  have  been.  With  the 
increasing  public  recognition  of  the  value  of  their  work  it  would 
seem  desirable  to  abolish  the  power  of  pardon  altogether.  In  the 
states  where  capital  punishment  has  been  abolished  it  is  doubtful 
whether  there  is  much  better  reason  for  retaining  longer  the  power 
of  reprieve. 


CHAPTER  XII 

THE  CONSTITUTIONAL  CONVENTION 

IN  the  beginning,  as  has  been  shown,  there  was  no  uniform 
practice  with  respect  to  the  organization  and  powers  of  the  con- 
stitutional convention.  In  some  of  the  original  states,  as  in 
Virginia,  the  first  independent  state  constitution  was  enacted  in 
the  same  manner  as  an  ordinary  statute,  and  possessed  no  higher 
sanction  than  that  placed  by  public  opinion  upon  the  proceedings 
of  a  Revolutionary  provincial  legislature.  In  others,  as  in  Penn- 
sylvania, it  was  prepared  by  a  Revolutionary  provincial  legisla- 
ture or  convention,  and  was  then  expressly  submitted  to  public 
opinion  for  approval  before  final  adoption.  In  others,  as  in 
New  York,  it  was  prepared  by  a  legislative  body  which  had 
explicit  authority  from  the  voters  to  draft  a  constitution  and  put 
it  into  effect  without  any  further  consultation  of  the  people. 
Finally,  in  Massachusetts  and  in  New  Hampshire  the  original 
state  constitutions  were  prepared  by  special  constitutional  con- 
ventions, called  by  the  ordinary  legislatures  in  response  to  special 
popular  votes,  and  they  were  then  submitted  to  the  voters  for 
their  express  approval.  The  ordinary  legislatures  of  these  two 
states  participated  in  the  work  of  constitution-making  only  to 
the  extent  of  submitting  to  the  voters  the  question  whether  or 
not  they  would  call  a  special  constitutional  convention,  and,  upon 
discovering  the  will  of  the  people  in  the  matter,  issuing  the  call 
and  providing  for  the  election  of  delegates.  This  was  the  be- 
ginning of  the  constitutional,  as  distinct  from  the  Revolutionary, 
convention  in  American  constitutional  history.1 

In  the  beginning,  moreover,  it  was  uncertain  whether  or  not 
the  constitutional  convention  would  become  a  permanent 
element  in  the  government  of  the  states.  Only  four  of  the 
thirteen  original  states,  or  including  Vermont,  five  states,  recog- 

1  See  J.  A.  Jameson,  The  Constitutional  Convention  (4th  ed.),  and  cf.  W.  F.  Dodd, 
The  Revision  and  Amendment  of  State  Constitutions,  ch.  i. 

394 


THE  CONSTITUTIONAL  CONVENTION  395 

nized  the  constitutional  convention  as  a  regular  organ  of  govern- 
ment. Although  only  three  states  made  express  provision  for 
the  amendment  of  their  original  constitutions  by  legislative 
action,  the  legislatures  of  the  other  six  possessed  by  implication 
similar  powers  of  amendment  as  well  as  the  power  of  general 
revision.  Jefferson,  one  of  the  most  earnest  advocates  of  the 
constitutional  convention  as  a  permanent  organ  of  government, 
feared  for  a  time  lest  the  legislatures,  particularly  that  of  his  own 
state,  should  usurp  the  powers  of  constitutional  amendment  and 
revision,  thus  taking  away  from  the  people  the  direct  control  of 
the  fundamentals  of  their  government.  Furthermore,  as  the 
event  proved,  the  special  provision  made  for  the  constitutional 
convention  in  Massachusetts  proved  inadequate,  that  made  in 
Pennsylvania  worked  badly,  and  that  made  in  Georgia  did  not 
work  at  all.  Nevertheless,  the  constitutional  convention  proved 
to  be  a  political  device  thoroughly  in  harmony  with  the  spirit 
of  American  government.  Its  survival  has  demonstrated  its  fit- 
ness. During  the  one  hundred  and  forty  years  that  have  elapsed 
since  the  dawn  of  American  independence  there  have  been  an 
even  greater  number  of  constitutional  conventions,  or  upon  the 
average  one  convention  in  each  state  in  each  generation. 

pRGANIZATION  AND  PROCEDURE  OF  CONVENTIONS 

The  state  constitutional  conventions  have  invariably  been 
unicameral  bodies.  In  the  beginning,  as  has  been  shown,  the 
bicameral  principle  was  adopted  in  most  of  the  states  for  the 
organization  of  the  legislatures,  and  eventually  it  was  adopted  for 
that  purpose  in  all.  But  it  has  never  been  applied  to  the  organi- 
zation of  constitutional  conventions.  Since  class  legislation  was 
not  apprehended  from  a  body  created  solely  to  consider  changes 
in  the  frame  of  government,  there  was  felt  to  be  no  need  of  a  divi- 
sion into  upper  and  lower  houses  in  order  to  give  separate  repre- 
sentation to  upper  and  lower  classes  of  the  population.  Since 
the  constitutional  convention  possessed  no  power  to  tax  or  to 
make  appropriations,  there  was  no  need  of  a  second  chamber  in 
order  to  give  special  representation  to  taxpayers.  Since  the 
constitutional  convention  exercised  no  executive  or  judicial 
powers,  there  was  no  need  of  a  second  house  to  which  those  powers 


396       STATE  GOVERNMENT  IN  UNITED  STATES 

might  be  separately  entrusted.  For  protection  against  the  adop- 
tion of  hasty  or  ill-considered  measures,  the  people  at  first  relied 
upon  the  slower  and  more  deliberate  procedure  pursued  by  the 
Revolutionary  assemblies  and  early  conventions  in  considering 
fundamental  changes  in  the  frame  of  government.  Subsequently, 
the  development  of  the  referendum  enabled  the  electorate  directly 
to  forbid  undesired  changes  in  the  fundamental  law.  In  short, 
those  considerations  which  were  supposed  to  justify  the  adoption 
of  the  bicameral  system  for  the  ordinary  legislative  bodies  did 
not  fit  the  case  of  the  constitutional  convention. 

The  state  constitutional  conventions  have  generally  been  or- 
ganized upon  the  model  of  the  lower  houses  of  the  state  legisla- 
tures. Indeed,  the  original  constitutional  conventions,  as  has 
been  shown,  were  in  most  states  the  identical  provincial  assem- 
blies, which,  through  the  instrumentality  of  the  constitutions 
framed  by  themselves,  were  transformed  into  the  lower  houses 
of  bicameral  legislatures.  Subsequent  constitutional  conventions 
were  organized  upon  the  same  model,  because  they  were  intended 
to  represent  the  whole  people  rather  than  any  privileged  class,  and 
the  lower  houses  of  the  legislatures  were  considered  more  repre- 
sentative of  the  whole  people  than  the  upper.  Since  the  Civil 
War,  however,  there  has  been  a  tendency  in  the  larger  states  to 
modify  the  basis  of  representation.  Thus,  the  Illinois  constitu- 
tion of  1870  provided  that  future  conventions  in  that  state 
should  be  chosen  by  senatorial  districts,  two  delegates  from  each 
district.  The  New  York  constitution  of  1894  contains  a  similar 
provision,  with  three  instead  of  two  delegates  to  be  chosen  from 
each  senatorial  district,  plus  fifteen  delegates  to  be  chosen  from 
the  state  at  large.  The  Pennsylvania  convention  of  1872  was 
organized  in  a  similar  way,  ninety-nine  delegates  being  chosen 
by  senatorial  districts  and  twenty-eight  in  the  state  at  large. 
By  the  Massachusetts  act  of  1916,  governing  the  organization 
of  the  convention  contemplated  in  that  state,  it  was  provided 
that  a  number  of  delegates  equal  to  the  number  of  represent- 
atives in  the  state  legislature  should  be  chosen  from  the 
regular  representative  districts,  and  that  in  addition  four 
delegates  should  be  chosen  from  each  of  the  sixteen  congres- 
sional districts  into  which  the  state  is  divided  and  sixteen  from 
the  state  at  large.  The  purpose  of  election  by  senatorial  districts  is 


THE  CONSTITUTIONAL  CONVENTION  397 

to  reduce  the  influence  of  petty  local  interests  in  the  constitu- 
tional convention.  The  addition  of  delegates  chosen  by  congres- 
sional districts  and  especially  of  those  chosen  in  the  state  at  large 
ought  still  further  to  enhance  the  influence  of  state-wide  as  con- 
trasted with  merely  local  considerations.  This  result  seems  in- 
deed to  have  been  attained  in  the  New  York  conventions  of  1894 
and  1915. 

There  have  also  been  attempts  in  recent  years  to  regulate  or 
so  far  as  possible  to  exclude  ordinary  partisan  influences.  The 
Pennsylvania  convention  of  1872  was  elected  under  a  system  of 
limited  voting  by  which  it  was  intended  that  the  minority 
party  should  be  assured  a  due  share  of  the  delegates.  Each 
voter  was  permitted  to  vote  for  only  fourteen  delegates  at  large, 
although  twenty-eight  were  to  be  elected,  and  for  only  two  sena- 
torial district  delegates,  where  three  were  to  be  elected.  Conse- 
quently, the  dominant  party  was  not  able  to  elect  much  more  than 
half  the  total  number  of  delegates  at  large  and  two-thirds  of 
the  district  delegates.  Furthermore,  a  provision  that  one-third 
of  the  delegates  might  require  the  separate  submission  of  any 
proposed  amendment  afforded  additional  protection  to  the 
minority  party.  More  recently,  since  the  introduction  of  the 
system  of  direct  nominations,  several  states  have  proposed  plans 
for  the  nomination  of  delegates  at  non-partisan  primaries  and 
their  election  without  any  party  labels,  obviously  suggested  by 
the  systems  of  non-partisan  judicial  nominations  and  elections. 
The  Massachusetts  convention  of  1917  is  to  be  elected  under 
such  a  plan.  The  Ohio  convention  of  1912  was  also  chosen  so 
as  to  eliminate  the  regular  partisan  divisions.  In  general,  the 
personnel  of  constitutional  conventions  is  markedly  superior  to 
that  of  the  ordinary  legislatures.  The  importance  of  the  work 
to  be  done  attracts  able  men  to  the  conventions,  and  the  publicity 
of  their  proceedings  puts  delegates  on  their  best  behavior.  Con- 
stitutional conventions  have  by  no  means  been  generally  free 
from  partisanship,  but  partisan  influences  have  usually  been  con- 
fined to  their  legitimate  field,  the  formulation  of  a  program  of 
revision  and  the  recommendation  of  appropriate  amendments 
for  adoption  by  the  electors. 

The  procedure  of  constitutional  conventions  is  also  generally 
modeled  upon  that  of  the  lower  houses  of  the  state  legislatures. 


398        STATE   GOVERNMENT  IN  UNITED   STATES 

Thus,  the  New  York  convention  of  1915  was  dominated  by  the 
president,  the  committee  on  rules,  and  the  recognized  leaders  of 
the  dominant  party  in  precisely  the  same  manner  as  the  legislative 
assembly.  In  other  states  the  ordinary  committee  system  gener- 
ally prevails.  But  the  greater  publicity  that  attaches  to  the  work 
of  conventions  makes  their  actual  procedure  more  deliberate  than 
that  of  legislatures.  Moreover,  the  limitations  upon  the  length 
of  sessions  which  seriously  impair  the  efficiency  of  so  many  state 
legislatures  do  not  apply  to  conventions  at  all.  Although  con- 
ventions have  to  finish  their  work  in  season  for  submission  to 
the  electors  at  the  next  election,  there  is  ordinarily  time  for  due 
deliberation.  Where  constitutional  revisions  are  submitted  to 
the  electorates  en  bloc  there  is  more  opportunity  for  the  evasion 
of  responsibility,  than  where  each  proposed  change  is  submitted 
separately.  The  practice  in  this  respect  is  not  uniform.  Some 
conventions,  indeed,  like  that  of  New  York  in  1915,  submit  a  few 
specially  important  or  highly  controversial  proposals  separately 
and  all  others  en  bloc.  The  latter  form  of  submission,  however, 
offers  opportunities  for  log  rolling  that  are  absent  where  each 
proposed  change  must  be  separately  submitted. 

More  important  is  the  effect  of  the  strict  limitation  of  the  func- 
tions of  conventions.  Though  the  conventions  have  power 
to  make  any  recommendations  they  please  to  the  electors  for 
adoption,  and  though  in  practice  they  do  recommend  ordinary 
legislative  measures  in  ever  increasing  quantity,  they  are  largely 
free  from  the  kind  of  business  which  is  chiefly  responsible  for  the 
discredit  into  which  the  ordinary  legislatures  have  fallen.  They 
have  little  occasion  to  deal  with  private  and  local  measures. 
They  do  not  make  appropriations  at  all.  Their  patronage  is  slight, 
and  nothing  of  importance  can  be  done  without  the  approval  of 
the  electorates.  Under  these  circumstances  delegates  can  con- 
centrate their  attention  upon  matters  of  constitutional  and  legis- 
lative policy,  and  decide  questions  more  strictly  upon  their  merits 
than  is  ordinarily  possible  in  the  legislatures. 

WORKING  OF  THE  CONVENTION  SYSTEM 

It  is  not  surprising,  therefore,  that  the  constitutional  convention, 
considered  as  an  organ  of  state  government,  has  on  the  whole  been 


THE  CONSTITUTIONAL  CONVENTION  399 

as  conspicuously  successful  as  the  legislature  has  been  unsuccess- 
ful. There  have  been  comparatively  few  instances  where  the 
work  of  conventions  has  been  totally  rejected  by  the  electorates. 
Notable  instances  of  this  kind  were  the  revisions  submitted  by 
the  Massachusetts  convention  of  1853,  the  Illinois  convention  of 
1862,  and  the  New  York  conventions  of  1867  and  1915.  Nine- 
tenths  of  the  general  revisions  submitted  to  the  electorates  for 
approval  have  been  accepted  by  the  majority  of  those  voting 
thereon.  Conventions  which  have  submitted  their  proposed 
amendments  separately  have  also  fared  well  at  the  hands  of  the 
electors.  The  Ohio  convention  of  1912  considered  five  hundred 
and  two  questions  and  finally  submitted  forty-one  separate 
amendments  to  the  electorate.  Thirty-three  of  these  were 
adopted  and  eight  were  rejected  by  a  majority  of  those  voting 
thereon.  The  New  Hampshire  convention  of  the  same  year 
submitted  twelve  propositions  to  the  electors.  All  of  these  were 
approved  by  a  majority  of  those  voting  thereon,  although  eight 
failed  of  adoption  by  the  people  because  they  failed  to  receive 
the  two-thirds  majority  required  for  adoption  under  the  consti- 
tution of  that  state.  This  record  compares  favorably  with  that 
of  the  legislatures  in  the  submission  of  amendments  to  the 
electorates.  Conventions  have  sometimes  refused  to  submit  their 
work  to  the  electorates  when  popular  approval  by  the  existing 
electorate  seemed  likely  to  be  withheld.  For  example,  several 
recent  conventions  in  southern  states,  bent  on  disfranchising 
negro  voters,  declared  their  revisions  effective  without  popular 
approval.  Other  conventions,  bent  on  extending  the  suffrage, 
have  submitted  their  work  to  electorates  including  the  new  voters 
whom  the  convention  proposed  to  enfranchise.  Without  doubt, 
in  the  absence  of  constitutional  provisions  clearly  defining 
the  powers  of  a  constitutional  convention,  there  is  always  a 
possibility  of  arbitrary  action  by  such  bodies.  But  where  the 
practice  of  submission  to  the  existing  electorates  is  definitely 
established,  the  popular  veto  appears  to  be  an  adequate  check 
against  the  usurpation  of  power  by  conventions. 

The  success  of  the  constitutional  convention  raises  the  question 
whether  the  legislatures  might  not  do  more  satisfactory  work  if 
their  organization  and  procedure  more  closely  resembled  that 
of  the  conventions.  The  legislatures  of  several  of  the  states 


400       STATE  GOVERNMENT  IN  UNITED  STATES 

in  the  Swiss  Confederation  are  organized  in  much  the  same 
manner  as  the  constitutional  convention.  In  Berne,  for  example, 
the  legislature  consists  of  a  single  house,  elected  for  four  years. 
This  house  has  broad  legislative  powers,  subject  to  the  referen- 
dum at  the  option  of  a  certain  proportion  of  the  electors.  Pro- 
posals to  amend  the  constitution,  however,  must  in  any  case  be 
submitted  to  the  electors  for  their  approval,  as  in  the  American 
states.  In  practice  comparatively  few  measures  have  to  be 
submitted  to  the  electorate  for  approval,  unless  there  is  a  sufficient 
demand  for  popular  review,  because  the  constitution  contains 
little  matter  of  an  ordinary  legislative  character.  A  constitu- 
tional convention  in  Berne  is  chosen  in  precisely  the  same  manner 
as  the  ordinary  legislature.  When  the  people  wish  to  choose  a 
convention,  they  simply  recall  the  whole  legislature  and  choose 
a  new  one.  The  members  of  the  recalled  legislature  are  eligible 
for  reelection.  One  effect  of  this  arrangement  is  to  provide  more 
continuous  popular  control  over  the  constitution  than  can  be 
exercised  in  this  country  through  occasional  conventions  meeting 
only  at  specified  intervals  or  when  the  legislature  can  be  induced 
to  submit  a  call  to  the  electorate.  Another  is  to  maintain  a 
higher  standard  for  the  personnel  of  the  legislature  than  can  be 
maintained  for  the  members  of  American  legislatures  with  their 
limited  legislative  powers  and  excessive  burden  of  non-legislative 
duties. 

Whether  or  not  in  the  American  states  a  single  unicameral 
legislative  body  could  be  safely  entrusted  with  all  the  powers  of 
both  constitutional  convention  and  legislature  would  depend 
mainly  upon  two  factors.  The  first  is  the  extent  to  which  the 
legislatures  can  be  relieved  of  the  excessive  burden  of  non- 
legislative  duties  which  now  so  encumber  their  deliberations. 
The  second  is  the  extent  to  which  the  power  of  popular  review 
over  legislation  can  be  effectively  exercised  by  the  state  elec- 
torates. The  relief  of  the  legislatures  from  non -legislative  duties 
is  contingent  upon  the  development  of  independent  and  reliable 
administrative  agencies.  The  effective  exercise  of  the  power 
of  popular  review  is  contingent  upon  the  development  of 
satisfactory  methods  for  direct  legislation,  subject  to  suitable 
restrictions,  by  the  electorates. 


CHAPTER  XIII 
DIRECT  LEGISLATION  BY  THE  ELECTORATES 

MANY  arguments  have  been  put  forth  in  support  of  direct  popu- 
lar participation  in  law-making,  but  they  are  all  reducible  to 
not  more  than  two.  The  nature  of  these  two  general  arguments 
was  well  explained  by  John  Stuart  Mill,  when  discussing  the 
criterion  of  a  good  form  of  government.  "The  first  element 
of  a  good  government,"  he  declared,1  "being  the  virtue  and  in- 
telligence of  the  human  beings  composing  the  community,  the 
most  important  point  of  excellence  which  any  form  of  government 
can  possess  is  to  promote  the  virtue  and  intelligence  of  the  people 
themselves.  The  first  question  in  respect  to  any  political  insti- 
tutions is,  how  far  they  tend  to  foster  in  the  members  of  the 
community  the  various  desirable  qualities.  .  .  .  The  govern- 
ment which  does  this  the  best  has  every  likelihood  of  being  the 
best  in  all  other  respects,  since  it  is  on  these  qualities,  so  far  as 
they  exist  in  the  people,  that  all  possibility  of  goodness  in  the 
practical  operation  of  the  government  depends.  We  may  con- 
sider then  as  one  criterion  of  the  goodness  of  a  government,  the 
degree  in  which  it  tends  to  increase  the  sum  of  good  qualities  in 
the  governed,  collectively  and  individually ;  since,  besides  that 
their  well-being  is  the  sole  object  of  government,  their  good  quali- 
ties supply  the  moving  force  which  works  the  machinery.  This 
leaves,  as  the  other  constituent  element  of  the  merit  of  a  govern- 
ment, the  quality  of  the  machinery  itself ;  that  is,  the  degree  in 
which  it  is  adapted  to  take  advantage  of  the  amount  of  good 
qualities  which  may  at  any  time  exist,  and  make  them  instru- 
mental to  the  right  purposes.  .  .  .  Government  is  to  be  judged 
by  its  action  upon  men,  and  by  its  action  upon  things ;  by  what 
it  makes  of  the  citizens  and  what  it  does  with  them  ;  its  tendency 

1  Representative  Government,  ch.  ii. 

3D  401 


402        STATE  GOVERNMENT  IN  UNITED  STATES 

to  improve  or  deteriorate  the  people  themselves,  and  the  goodness 
or  badness  of  the  work  it  performs  for  them,  and  by  means  of 
them.  Government  is  at  once  a  great  influence  acting  on  the 
human  mind,  and  a  set  of  organized  arrangements  for  public 
business.  ..."  The  first  general  argument,  therefore,  which 
may  be  advanced  in  behalf  of  the  submission  of  measures  to  the 
electorates,  is  that  the  practice  of  voting  on  measures  affords  a 
beneficial  educational  discipline. 

The  second  general  argument  is  that  the  direct  participation 
of  the  electorate  in  the  process  of  law-making  will  improve  the 
quality  of  legislation.  Improvements  may  be  brought  about, 
it  is  urged,  either  directly  through  the  action  of  the  electorates 
themselves,  or  indirectly  through  the  increased  sense  of  respon- 
sibility which  the  legislators  will  feel  when  subject  to  effective 
control  by  those  whom  they  represent. 

THE  TEST  OF  DIRECT  LEGISLATION 

These  theoretical  considerations  need  to  be  put  to  the  test  of 
experience.  For  the  purpose  of  applying  this  test  the  work  of  the 
electorates  in  passing  judgment  upon  measures  can  most  con- 
veniently be  divided  into  three  classes :  the  first,  comprising 
all  measures  which  are  submitted  to  the  electorate  upon  the 
initiative  of  some  official  representative  body,  a  constitutional 
convention  or  legislature ;  the  second,  comprising  all  measures 
which  are  first  adopted  by  a  representative  body  but  are  subse- 
quently referred  to  the  electorate  by  popular  petition ;  and  the 
third,  comprising  all  measures  submitted  to  the  electorate  upon 
the  initiative  of  some  of  the  voters  themselves  without  the  inter- 
vention of  any  representative  body.  Of  the  first  class  of  measures 
the  great  mass  are  constitutional  amendments,  and  the  action 
of  the  electorates  on  these  may  be  taken  as  typical  of  the  action 
of  the  electorates  upon  all  measures  submitted  upon  the  initia- 
tive of  representative  bodies. 

The  first  class  of  measures  has  been  hitherto  by  far  the  most 
numerous.  During  the  ten  years  from  1899  to  1908  inclusive 
four  hundred  and  seventy-two  constitutional  questions  were 
submitted  to  the  electorates  of  forty-three  states,  i.e.,  all  the 
states  then  in  the  Union  except  Delaware  and  Vermont.  On  the 


DIRECT  LEGISLATION  BY  THE  ELECTORATES      403 

average  there  was  more  than  one  amendment  each  year  in  every 
state.1  There  has  been  no  decrease  in  the  rate  of  submission  since 
then.  The  second  and  third  classes  of  measures  are  of  recent 
origin  but  are  rapidly  increasing  in  number.  The  popular  ref- 
erendum was  used  for  the  first  time  in  Oregon  in  1906  and  down 
to  the  close  of  1914  had  been  used  altogether  seventy-eight  tunes 
in  twelve  states.  The  popular  initiative  has  come  into  use  still 
more  rapidly.  It  was  employed  for  the  first  time  in  Oregon  in 
1904  and  down  to  the  close  of  1914  had  been  employed  altogether 
two  hundred  and  nine  times  in  fourteen  states.2  In  nine  of  these 
states  one  hundred  and  twenty  proposed  statutes  have  been  re- 
ferred to  the  electorate  upon  the  direct  initiative  of  the  people, 
and  in  ten  of  them  eighty-nine  proposed  constitutional  amend- 
ments have  likewise  been  referred  upon  direct  popular  initiative. 
It  is  evident  that  the  work  of  the  electorates,  so  far  as  it  relates  to 
action  upon  measures,  is,  taking  the  Union  as  a  whole,  rapidly 
increasing. 

The  work  of  the  electorates,  however,  is  not  evenly  distributed 
among  the  states.  According  to  Dodd's  investigations,  fifty-one 
proposed  constitutional  amendments  were  referred  to  the  elec- 
torate in  California  in  ten  years,  fifty  in  Louisiana,  and  thirty 
in  Missouri.  On  the  other  hand,  in  each  of  thirty  states  fewer 
than  ten  amendments  were  referred  by  the  legislature  during  the 
same  period.  The  explanation  must  be  sought  partly  in  the 
differences  in  the  political  conditions  in  the  several  states,  but 
mainly  in  the  character  of  the  constitutions  themselves  and  of  the 
processes  of  amendment.  In  Indiana,  for  example,  the  process 
of  amendment  is  so  difficult  that  despite  persistent  attempts  it 
has  not  been  possible  to  secure  final  action  on  a  single  amendment 
during  a  long  period  of  years.  In  Louisiana,  on  the  other  hand, 
the  legislature  is  so  limited  in  its  powers  to  enact  ordinary 
statutes,  and  the  constitution  itself  is  so  encumbered  with  ordi- 
nary legislative  matter,  that,  it  is  scarcely  an  exaggeration  to  say, 
the  people's  representatives  are  compelled  to  depend  upon  the 
constant  cooperation  of  the  electorate  in  order  to  legislate  at  all. 
The  use  of  the  direct  popular  referendum  and  initiative  is  dis- 

1  See  W.  F.  Dodd,  The  Revision  and  Amendment  of  State  Constitutions,  p.  268. 
•See  A.  L.  Lowell,  Public  Opinion  and  Popular  Government,  app.  B,  and  The 
New  Republic,  ii,  18,  pt.  2. 


404       STATE  GOVERNMENT  IN  UNITED  STATES 

tributed  with  similar  unevenness.  Fifteen  of  the  seventy-eight 
instances  of  the  use  of  the  popular  referendum  to  1914  occurred 
in  Oregon,  and  ninety-five  of  the  two  hundred  and  nine  instances 
of  the  use  of  the  popular  initiative  occurred  in  the  same  state. 
It  has  often  been  urged  as  a  special  advantage  of  the  federal  sys- 
tem of  government  that  the  separate  states  can  more  easily 
undertake  political  experiments  than  a  single  consolidated  govern- 
ment, and  that,  since  each  state  can  profit  by  the  experiments  of 
the  others,  progress  in  government  is  more  certainly  secured  by 
the  competition  between  the  states  in  the  adoption  of  improve- 
ments. The  various  arrangements  in  the  several  states  with 
respect  to  the  direct  action  of  the  voters  upon  measures  furnish  a 
conspicuous  illustration  of  this  advantage  of  federal  government. 
The  character  of  the  work  performed  by  the  state  electorates 
can  be  ascertained  only  by  inspection  of  the  results  of  the  votes 
upon  the  measures  referred  to  them.  It  will  be  convenient  to 
consider  first  the  results  of  the  voting  upon  constitutional  amend- 
ments referred  to  the  voters  by  the  several  state  legislatures. 

WORKING  OF  THE  COMPULSORY   CONSTITUTIONAL 
RFEERENDUM 

The  first  matter  to  be  considered  is  the  degree  of  interest  dis- 
played by  the  voters  in  the  work  put  upon  them  by  the  compul- 
sory constitutional  referendum.  During  the  ten  years  1899- 
1908  the  average  vote  upon  the  four  hundred  and  seventy- two 
measures  covered  by  Dodd's  investigations  amounted  to  less 
than  fifty  per  cent  of  the  total  vote  cast  at  the  polls  on  the 
several  occasions  when  the  measures  were  put  to  the  vote.  There 
was  a  marked  variation,  however,  in  the  interest  displayed  in 
proposed  constitutional  amendments  in  the  different  parts  of  the 
country.  In  New  York  less  than  a  third  of  those  who  went  to 
the  polls  cast  their  votes  on  the  measures  referred  to  them  by  the 
legislature.  In  New  England  and  the  northeastern  states  gen- 
erally, the  average  vote  was  not  much  over  forty  per  cent.  In 
New  Jersey  a  series  of  important  amendments  relating  to  the 
reorganization  of  the  state  judiciary  were  submitted  at  a  special 
election  in  1903,  and  only  12  per  cent  of  the  normal  vote  of  the 
state  was  cast  upon  them.  In  the  West,  the  proportion  of  voters 


DIRECT  LEGISLATION  BY  THE  ELECTORATES      405 

voting  on  constitutional  amendments  was  also  low,  being  on  the 
average  nearer  40  than  50  per  cent  of  the  total.  In  the  central 
states,  on  the  other  hand,  and  in  the  South,  the  proportion  was 
higher  than  in  the  other  parts  of  the  country,  averaging  above 
50  and  towards  60  per  cent.1  In  short  there  is  great  inequality 
in  the  size  of  the  vote  cast  upon  the  various  kinds  of  measures 
submitted  to  the  voters  under  the  compulsory  constitutional 
referendum,  and  presumably  there  is  a  corresponding  degree  of 
inequality  in  the  public  interest  in  these  measures. 

The  nature  of  the  questions  which  the  voters  tend  to  regard  as 
most  important  is  revealed  by  an  analysis  of  the  measures  upon 
which  three-fourths  or  more  of  those  attending  the  polls  were 
sufficiently  interested  to  vote.  In  general,  with  the  exception  of 
negro  suffrage  and  the  liquor  question,  the  questions  arousing  the 
most  interest  on  the  part  of  the  voters  which  most  frequently  arose 
under  the  compulsory  constitutional  referendum  involved  the 
methods  of  conducting  public  business,  the  use  of  public  moneys, 
and  the  pay  of  the  public  servants.  They  touched  the  pocket- 
books  rather  than  the  feelings  of  the  people.  The  action  of  the 
voters  upon  them  was  not  reckless,  but  prudent,  inclining  rather 
to  excessive  caution  than  to  the  exhibition  of  the  "  gusts  of  pas- 
sion" which  some  critics  of  popular  institutions  have  apprehended. 

A  fair  inference  with  respect  to  the  character  of  the  work  of  the 
state  electorates,  obtained  by  inspection  of  the  results  of  popu- 
lar referenda  upon  constitutional  amendments,  is  that  the  voters 
are  capable  of  discriminating  between  satisfactory  and  unsatis- 
factory measures.  In  no  state  are  the  constitutional  amend- 
ments proposed  by  the  legislature  accepted  mechanically  by  the 
electorate,  and  in  no  state  are  they  mechanically  rejected.  Some 
are  accepted  and  others  are  rejected.  The  proportion  of  meas- 
ures rejected  varies  considerably  among  the  states,  but  the  elec- 
tion returns  of  all  the  states  are  alike  in  affording  no  evidence  that 
the  electorate  is  a  mere  machine  for  registering  the  decisions  of 
other  organs  of  government. 

Action  that  is  clearly  unreasonable  has  been  rare.  In  1900  the 
voters  of  Oregon  declined  by  a  narrow  majority  to  repeal  the  ob- 

1  But  in  the  South,  if  the  degree  of  interest  were  calculated  on  the  basis  of  the 
ratio  between  votes  cast  on  measures  and  votes  cast  for  candidates  at  the  primaries, 
the  comparative  showing  would  not  be  so  good. 


406        STATE  GOVERNMENT  IN  UNITED  STATES 

solete  provision  of  their  constitution  excluding  free  negroes  from 
the  state.  The  provision  had  long  ceased  to  have  any  legal  ef- 
fect, if  it  ever  had  any,  and  the  majority  of  those  who  went  to  the 
polls  failed  to  vote  on  it  at  all.  In  1912  the  voters  of  Ohio  de- 
clined to  ratify  a  proposition  from  their  constitutional  convention 
striking  from  their  constitution  another  obsolete  provision  ex- 
cluding negroes  from  the  right  of  suffrage.  But  these  instances 
of  futile  action  prompted  by  prejudice  are  exceptional. 

A  more  serious  evil  is  the  frequent  adoption  of  measures  with 
respect  to  which  the  election  returns  indicate  that  there  is  no 
clear  public  opinion  at  all.  Many  measures  are  adopted  or  re- 
jected by  majorities  so  small  that  it  is  impossible  to  determine 
whether  the  decision  represents  the  will  of  the  electorate  or 
merely  is  the  result  of  chance.  Thus,  in  California  during  the 
years  1898-1908  there  were  half  a  dozen  proposed  amendments 
which  were  adopted  or  rejected  by  majorities  of  less  than  i  per 
cent  of  the  total  vote  cast  thereon.  The  change  of  one  voter  in 
two  hundred  from  one  side  to  the  other  would  have  altered  the 
result.  For  example,  in  1904  a  proposition  permitting  the  re- 
vision of  codes  by  single  acts  was  rejected  by  a  majority  of 
883  in  a  total  vote  of  118,983,  and  in  1908  propositions  to  repeal 
a  provision  regarding  the  taxation  of  mortgages  and  to  increase 
the  compensation  of  state  officers  were  decided,  the  former  nega- 
tively, the  latter  affirmatively,  by  majorities  of  835  and  two 
respectively  in  a  total  vote  of  over  one  hundred  and  eighty 
thousand.  Similar  cases  can  be  found  in  other  states.  That  any 
important  question  can  be  permanently  decided  by  such  majori- 
ties is  unthinkable,  and  if  the  decision  in  close  cases  has  been 
acquiesced  in,  the  explanation  must  be  that  the  public  are  indif- 
ferent concerning  the  result.  In  other  words,  there  can  be  no  real 
public  opinion  concerning  the  matters  in  question.  The  fact  that 
a  popular  referendum  could  elicit  from  the  electorate  a  languid 
expression  of  sentiment  on  such  questions  indicates  a  gratifying 
response  on  the  part  of  many  voters  to  the  call  of  duty,  but  also 
indicates  that  the  electorates  ought  not  to  be  called  upon  to  per- 
form work  in  which  they  feel  so  little  interest. 

Indeed  the  most  serious  evil  in  the  working  of  the  compulsory 
constitutional  referendum  is  the  lack  of  interest  shown  in  a  large 
proportion  of  the  measures.  Ninety  per  cent  of  the  measures 


DIRECT  LEGISLATION  BY  THE  ELECTORATES      407 

are  voted  on  by  less  than  three-fourths  of  those  who  go  to  the 
polls.  A  majority  are  voted  on  by  less  than  half  of  the  voters. 
When  the  vote  is  small,  there  is  no  certainty  that  the  decision 
is  supported  by  any  real  public  opinion,  and  when  the  vote  is 
close  as  well  as  small,  the  decision  may  easily  be  produced  by  mere 
chance,  or  even  by  some  more  objectionable  influence.  The  bur- 
dening of  the  ballot  with  trivial  propositions  constitutes  a  need- 
less tax  on  the  patience  of  the  voter,  and  tends  to  breed  contempt 
of  his  high  function  as  final  arbiter  of  public  questions.  The 
power  to  foist  upon  the  voter  the  task  of  deciding  unimportant 
but  vexatious  questions  constitutes  a  harmful  temptation  to  lazy 
and  timid  and  dishonest  legislators,  and  tends  to  foster  slovenly 
and  even  pernicious  practices  in  legislative  bodies.  On  the 
other  hand,  where  the  public  interest  is  lively,  all  the  evidence 
tends  to  show  that  the  submission  of  measures  to  the  voters 
works  well.  In  such  cases  the  decision  represents  the  expression 
of  a  genuine  public  opinion.  This  opinion  may  not  always  be  the 
result  of  pure  reason.  Yet  the  state  electorates  show  a  readiness 
to  change  their  opinions,  once  expressed,  when  proper  reasons 
are  furnished  for  so  doing,  and  display  no  inconsiderable  acute- 
ness  hi  discriminating  between  the  merits  of  the  different  prop- 
ositions lying  within  the  field  of  their  interest  that  are  brought 
to  their  attention.  Of  course  when  there  is  a  strong  and  greatly 
preponderant  public  opinion  with  respect  to  any  matter  it  is  not 
necessary  to  refer  a  question  relating  thereto  to  the  electorate. 
Honest  and  intelligent  public  officials  are  capable  of  reading  the 
mind  of  the  people  for  themselves.  It  is  when  public  opinion  is 
not  altogether  clear,  as  in  regard  to  the  regulation  of  the  liquor 
traffic,  or  when  the  interest  of  the  official  is  not  identical  with 
that  of  the  people,  as  in  regard  to  the  powers  or  perquisites  of 
office,  that  the  value  of  the  compulsory  referendum  is  greatest. 
In  such  cases  the  referendum  affords  the  most  direct  and  the 
most  certain  means  of  testing  public  opinion.  It  provides  the 
best  security  against  the  excessive  violence  of  political  contro- 
versy, and  largely  contributes  to  the  stability  of  the  governments 
of  the  states.1 

1  For  a  collection  of  essays  dealing  with  the  referendum  from  various  points 
of  view,  see  W.  B.  Munro,  editor,  The  Initiative,  Referendum,  and  Recall.  See 
also  D.  F.  Wilcox,  Government  by  All  the  People. 


4o8       STATE  GOVERNMENT  IN  UNITED  STATES 

REFORM  OF  CONSTITUTIONAL  REFERENDUM 

The  lack  of  interest  on  the  part  of  the  voters  in  many  proposed 
constitutional  amendments  may  be  partly  explained  by  the 
failure  of  the  legislatures  to  make  adequate  provision  for  bring- 
ing proposed  amendments  to  the  notice  of  the  electorates.  In 
most  states  the  legislatures  are  not  constitutionally  required  to 
publish  such  measures  in  any  other  manner  than  ordinary  legis- 
lative enactments,  and  in  fact  do  not  publish  them  except  in  the 
volumes  of  session  laws.  Unless  the  measures  are  specially  dis- 
cussed on  the  platform  or  in  the  newspapers,  most  voters  will 
learn  of  their  existence  for  the  first  tune  when  they  examine 
their  ballots  at  the  polls.  Then  they  will  be  compelled  to  form  a 
hasty  judgment  upon  the  evidence  afforded  by  the  bare  titles  of 
the  measures  on  the  ballot.  In  a  few  states  it  has  been  provided 
that  measures  should  be  printed  on  the  ballot  in  full  instead  of 
by  title.  Few  voters,  however,  are  able  to  study  a  column  or 
more  of  proposed  legislation  deliberately  and  intelligently  in  the 
polling  booth.  Still  fewer  will  do  so  without  feeling  that  to  throw 
such  a  burden  upon  them  without  notice  is  an  unreasonable  im- 
position. Several  states  therefore  have  provided  that  proposed 
amendments  shall  be  printed  in  full  one  or  more  times,  at  pre- 
scribed intervals  prior  to  the  election,  in  one  or  more  newspapers 
in  each  county.  The  newspapers  themselves  are  inclined  to  en- 
dorse this  method  of  publication,  for  reasons  some  of  which  are 
obvious  enough.  Such  publication  undoubtedly  does  secure 
more  or  less  publicity,  especially  in  rural  districts  where  the 
county  papers  of  the  major  parties  are  recognized  political  insti- 
tutions. No  state,  however,  prior  to  the  introduction  of  the  op- 
tional referendum,  made  any  special  provision  for  putting  before 
the  voter  the  reasons  for  a  proposed  constitutional  amendment, 
and  the  discussions  volunteered  by  the  newspapers  were  likely 
to  be  partisan,  and  almost  certain  to  be  one-sided.  Matters 
touching  the  interests  of  the  newspapers  themselves,  such  as,  for 
example,  proposals  to  establish  a  better  system  of  publicity, 
could  hardly  be  expected  to  receive  much  consideration  upon 
their  merits.  At  best  this  mode  of  publication  is  a  casual  rather 
than  a  systematic  attempt  to  inform  the  electorate  about  the 
merits  of  the  proposals  upon  which  it  is  required  to  vote,  and  the 


DIRECT  LEGISLATION  BY  THE  ELECTORATES      409 

interest  it  may  be  expected  to  arouse  will  be  casual  rather  than 
systematic.  Matters  not  spontaneously  felt  by  the  voters  to  be 
of  major  importance  will  not  receive  general  public  attention. 
Nevertheless  the  neglect  of  the  states  to  provide  proper  proce- 
dure for  arousing  the  interest  and  assisting  the  judgment  of  the 
voters  does  not  explain  all  the  indifference  to  proposed  constitu- 
tional amendments  which  has  been  shown  to  exist. 

In  recent  years  it  is  certain  that  the  practice  of  the  compulsory 
constitutional  referendum  has  left  much  to  be  desired.  It  is 
frequently  asserted  that  the  cause  lies  in  the  number  of  measures 
referred  to  the  voters,  and  that  if  the  number  were  restricted  the 
public  interest  would  increase.  Several  states  have  acted  upon 
this  assumption,  placing  arbitrary  limits  upon  the  number  of 
amendments  that  may  be  proposed  at  the  same  time.  Thus 
Illinois  provides  that  amendments  may  not  be  proposed  to  more 
than  one  article  of  the  constitution  at  a  time,  nor  to  the  same 
article  more  than  once  in  four  years,  and  Indiana  provides  that 
only  one  amendment  may  be  proposed  at  a  time  and  no  other 
amendment  may  be  proposed  until  that  one  has  been  disposed  of. 
Vermont  does  not  limit  the  number,  but  forbids  the  proposal 
of  any  amendments  except  at  intervals  of  ten  years.  The  Ver- 
mont provision  seems  clearly  unreasonable,  since  the  objection 
is  not  that  the  voters  are  required  to  express  an  opinion  in  too 
many  different  years,  but  that  they  are  required  to  express  too 
many  opinions  in  the  same  year.  The  Indiana  and  Illinois  pro- 
visions tend  rather  to  discourage  than  encourage  the  submission 
by  the  legislature  of  important  amendments  only,  because  it  is 
so  easy  for  opponents  of  action  on  the  important  matters  to  com- 
bine in  order  to  force  the  submission  of  unimportant  matters, 
thus  blocking  the  path  for  the  others.  This  has  actually  oc- 
curred in  recent  years  in  both  states. 

The  cause  of  the  lack  of  interest  in  so  large  a  proportion  of  the 
proposed  amendments  in  recent  years  has  not  only  been  their 
excessive  number,  but  also  the  excessive  triviality  of  many  of 
them.  A  superficial  remedy  for  this  evil  consists  in  the  provision 
existing  in  a  dozen  states  that  no  proposed  amendment  shall  be 
adopted  unless  it  receives  the  affirmative  votes  of  more  than  a 
bare  majority  of  those  voting  thereon.  In  Rhode  Island  the 
requirement  is  a  three-fifths,  in  New  Hampshire  a  two-thirds, 


4io        STATE  GOVERNMENT  IN  UNITED  STATES 

vote.  The  more  common  practice  is  the  requirement  that  a 
measure,  to  be  adopted,  must  receive  a  majority,  not  merely  of 
all  the  votes  cast  thereon,  but  of  all  the  votes  recorded  at  the 
election  at  which  the  measure  is  voted  on.  This  is  in  effect  a 
rule  that  all  voters  who  attend  the  polls  and  do  not  vote  either 
for  or  against  a  proposed  amendment  shall  be  counted  against  it. 
Such  a  rule  is  illogical,  for  the  presumption  in  their  case  is  not  that 
they  are  opposed  to  the  measure  but  that  they  are  willing  to 
abide  by  the  decision  of  those  who  hold  an  opinion  strongly 
enough  to  take  the  trouble  of  expressing  it.  It  also  works  badly. 
During  the  years  1898-1908  there  were  seventy-five  measures 
referred  to  the  voters  in  twelve  states  upon  which  a  special  ma- 
jority was  required  for  adoption.  Twenty-five  of  these  measures 
received  the  affirmative  votes  of  a  majority  of  all  those  partici- 
pating in  the  elections  at  which  they  were  severally  referred,  and 
were  consequently  adopted.  Ten  received  more  negative  than 
affirmative  votes  and  were  rejected.  The  other  forty  were 
favored  by  a  majority  of  those  voting  on  them,  but  nevertheless 
failed  of  adoption,  because  of  the  number  of  voters  who  failed 
to  express  any  opinion.  Most  of  these  measures  were  open  to  no 
serious  objections.  Many  were  not  even  controversial  and  should 
have  been  adopted.  Thus  in  Minnesota  a  proposition  to  permit 
school  funds  to  be  invested  in  municipal  and  other  local  bonds 
was  referred  to  the  voters  at  three  successive  general  elections 
before  it  was  adopted,  though  it  was  never  approved  by  less  than 
seventy-five  thousand  majority.  A  proposition  to  establish  a 
state  road  and  bridge  fund  was  also  thrice  referred,  and,  though 
regularly  approved  by  even  larger  majorities,  was  never  adopted 
at  all.  In  Indiana  the  failure  of  the  voters  to  take  any  interest 
in  a  proposition  to  authorize  the  legislature  to  prescribe  the  quali- 
fications for  admission  to  the  bar  has  prevented  any  change  what- 
soever in  the  constitution  for  twenty  years.  Finally,  the  rule 
can  be  easily  evaded  in  practice,  as  has  been  done  in  certain  cases 
in  Oklahoma,  by  the  simple  but  costly  expedient  of  calling  a  spe- 
cial election. 

Another  remedy  for  the  lack  of  interest  displayed  by  voters  in 
constitutional  amendments  referred  to  them  by  state  legislatures 
has  been  tried  in  Nebraska  and  Ohio.  This  consists  in  a  pro- 
vision that  proposed  amendments  may  be  formally  endorsed  or 


DIRECT  LEGISLATION  BY  THE  ELECTORATES      411 

protested  by  political  parties  in  state  convention  assembled.  The 
voter  may  express  his  approval  of  the  position  of  his  party  in 
general  by  a  single  cross  on  his  ballot  which  then  is  counted  as 
one  vote  for  the  straight  party  ticket.  Thus  his  opinion  is  ex- 
pressed for  or  against  the  various  measures  which  have  been  re- 
ferred to  the  people,  as  the  case  may  be,  without  the  necessity 
of  his  taking  the  trouble  even  to  read  their  titles.  This  device 
may  be  a  logical  development  of  the  party  system,  as  established 
in  many  states,  but  it  is  an  extraordinary  manner  of  stimulating 
popular  interest  in  voting  on  measures.  In  Nebraska  the  party 
which  controlled  the  legislature,  and  hence  the  submission  of 
constitutional  amendments,  regularly  endorsed  the  propositions 
which  were  submitted.  Thus,  because  of  the  general  prevalence 
of  the  habit  of  voting  a  straight  party  ticket,  a  large  number 
of  votes  were  counted  for  the  several  propositions,  although  few 
votes  were  actually  cast  for  them.  The  electorate  was  con- 
verted into  a  mere  rubber  stamp.  In  Ohio  the  system  has  worked 
in  a  similar  manner.  In  1903  nine- tenths  of  the  voters  were  re- 
corded on  each  of  three  propositions  which  had  been  acted  upon 
by  both  political  parties.  A  fourth  proposition  had  neither  been 
endorsed  nor  protested  by  any  party  and  was  actually  voted  on 
by  less  than  one-sixteenth  of  those  who  went  to  the  polls.  Such 
a  remedy  is  grasping  for  the  shadow,  and  overlooking  the  sub- 
stance. The  official  returns  make  a  brave  show,  but  the  voters 
have  little  part  in  it. 

The  chief  difficulty  with  the  constitutional  referendum  does 
not  lie  in  the  smallness  of  the  vote  on  many  of  the  measures  sub- 
mitted, but  in  the  smallness  of  the  public  interest  in  them ;  and 
the  true  remedy  does  not  lie  in  attempting  to  enhance  the  size 
of  the  vote  by  mechanical  devices,  but  in  attempting  to  free  the 
ballot  from  the  burden  of  trivial  matters.  The  most  promising 
remedy  is  to  substitute  in  whole  or  in  part  the  optional  for  the 
compulsory  referendum  on  constitutional  amendments  proposed 
by  the  state  legislatures.  Before  considering  such  a  remedy, 
however,  it  is  necessary  to  examine  the  operation  of  the  optional 
referendum  upon  ordinary  legislative  enactments.1 

1  See,  for  a  detailed  study  of  the  working  of  the  referendum  in  the  state  where 
it  has  been  most  freely  used,  J.  D.  Barnctt,  The  Operation  of  the  Initiative, 
Referendum,  and  Recall  in  Oregon. 


412       STATE  GOVERNMENT  IN  UNITED  STATES 

WORKING  OF  THE  OPTIONAL   REFERENDUM  ON  LEGISLA- 
TIVE ENACTMENTS 

The  optional  referendum  upon  legislative  enactments,  like  the 
compulsory  referendum  upon  proposed  constitutional  amend- 
ments, can  best  be  studied  by  inspection  of  the  results  of  the 
votes  actually  cast  upon  the  measures  thus  referred  to  the 
electorates. 

In  the  first  place,  popular  interest  in  measures  referred  to 
the  voters  under  the  optional  referendum  is  more  general  than  in 
measures  referred  under  the  compulsory  constitutional  referen- 
dum. Whilst  during  the  years  1899-1908  only  one-tenth  of  the 
latter  were  voted  on  by  three-fourths  of  those  who  went  to  the 
polls,  nearly  one-half  of  the  former  have  been  voted  on  by  a 
similar  proportion  of  the  voters.  Whilst  the  majority  of  the 
constitutional  amendments  fail  to  arouse  any  perceptible  interest 
in  above  fifty  per  cent  of  the  voters,  not  more  than  one-fifth  of  the 
measures  referred  under  the  optional  referendum  fail  to  interest 
a  majority  of  the  voters.  In  short,  the  optional  referendum 
places  upon  the  voters  no  such  burden  of  deciding  measures 
which  do  not  interest  them  as  is  placed  upon  them  by  the  com- 
pulsory constitutional  referendum.  At  the  same  time  the  voters 
reject  a  larger  proportion  of  the  measures  referred  to  them  under 
the  optional  referendum  than  of  those  referred  under  the  com- 
pulsory constitutional  referendum.  Whilst  only  about  thirty  per 
cent  of  the  latter  were  rejected,  more  than  half  of  the  measures 
referred  under  the  optional  referendum  have  been  rejected  by 
the  voters.  In  the  twelve  states  in  which  the  optional  refer- 
endum had  been  put  to  use  down  to  the  close  of  1914  the  popular 
veto  was  invoked  in  the  cases  of  seventy-eight  measures  and  was 
actually  exercised  in  the  cases  of  forty-one.  In  other  words, 
under  the  optional  referendum  the  voters  are  much  less  fre- 
quently required  to  vote  upon  measures  of  which  they  do  not 
disapprove  than  under  the  compulsory  referendum.  Thus,  if 
the  test  of  the  popular  referendum  is  its  efficiency  as  a  device  for 
preventing  the  adoption  of  measures  not  satisfactory  to  the  voters, 
the  optional  referendum  upon  legislative  enactments  is  appar- 
ently a  more  efficient  instrument  than  the  compulsory  referendum 
upon  proposed  constitutional  amendments. 


DIRECT  LEGISLATION  BY  THE  ELECTORATES      413 

The  greater  efficiency  of  the  optional  referendum  is  indicated 
also  by  an  examination  of  the  nature  of  the  measures  referred  to 
the  electorates  by  petition.  It  has  been  shown  that  under  the 
compulsory  constitutional  referendum  many  trivial  matters  can 
be  disposed  of  only  by  reference  to  the  voters,  and  that  this  con- 
dition will  persist  so  long  as  the  constitutions  of  many  states  are 
loaded  with  legislative  detail.  Under  the  optional  referendum 
presumably  no  measure  is  referred  to  the  voters  unless  a  substan- 
tial number  of  voters  is  sufficiently  interested  to  file  a  petition. 
In  practice  it  appears  that  the  measures  referred  by  petition  are 
rarely  of  trivial  character.  The  titles  of  the  fifty  legislative  meas- 
ures referred  to  the  electorates  by  petition  in  the  states  possessing 
the  direct  popular  referendum  down  to  the  close  of  1912  have 
been  listed  by  various  writers,1  and  are  readily  accessible.  Of  the 
twenty-eight  legislative  measures  referred  to  the  state  electorates 
by  petition  in  1913  and  1914,  six  related  to  matters  of  local  gov- 
ernment, five  to  the  regulation  of  public  utilities,  four  to  the  con- 
duct of  higher  education,  three  to  compensation  for  industrial 
accidents,  and  the  other  ten  to  various  topics  ranging  from  the 
establishment  of  a  penal  code  to  the  inspection  of  investment 
securities.  There  is  no  measure  of  such  trivial  character  as  often 
appears  under  the  compulsory  constitutional  referendum. 

Examination  of  the  measures  vetoed  by  the  state  electorates 
leads  to  the  conviction  that  the  legislatures  enacting  them 
were  out  of  touch  with,  if  not  in  direct  opposition  to,  public 
opinion  upon  the  matters  concerned.  Of  the  twenty-five  meas- 
ures vetoed  by  the  voters,  down  to  1912,  a  half-a-dozen  were  acts 
providing  increased  appropriations  for  public  institutions  or  in- 
creased salaries  or  perquisites  for  public  officials,  two  provided 
for  the  creation  of  new  state  offices,  and  three  related  to  the 
tenure  or  compensation  of  local  officers.  Two  others  related  to 
changes  in  fiscal  machinery  or  procedure.  The  other  vetoed 
measures  related  to  a  variety  of  subjects,  such  as  the  establish- 
ment of  a  summer  school  for  teachers,  and  the  regulation  of  water- 
rights  for  irrigation  in  Colorado,  the  organization  and  use  of  the 
state  militia  in  Montana  and  South  Dakota,  the  apportionment 
of  congressional  districts  in  the  latter  state,  and  the  standardiza- 

1  See  A.  L.  Lowell,  Public  Opinion  and  Popular  Government,  app.  B.  See  also 
Equity,  xv,  no.  i.  (January,  1913.) 


4i4       STATE  GOVERNMENT  IN  UNITED  STATES 

tion  of  the  percentage  of  alcohol  permissible  in  intoxicating  liquors 
in  Maine.  Among  the  sixteen  measures  vetoed  by  the  electo- 
rates in  1913  and  1914  were  proposals  to  license  prize  fighting, 
restrict  the  sale  of  game,  require  railroads  to  employ  full  crews 
of  trainmen,  license  commission-merchants,  and  sterilize  habitual 
criminals.  There  is  a  corresponding  variety  in  the  laws  which 
upon  reference  to  the  voters  were  approved  by  them.  South 
Dakota  and  Oregon  are  the  states  in  which  the  optional  referen- 
dum has  been  most  freely  used.  In  the  former,  the  popular  veto 
has  been  invoked  against  thirteen  measures,  in  six  cases  with  suc- 
cess. The  vote  upon  referred  measures  varied  from  86.9  per  cent 
upon  the  divorce  act  of  1908,  which  was  sustained,  to  60.  i  per 
cent  in  1910  upon  an  amendment  to  the  law  relating  to  a  "city, 
town,  or  place  desiring  to  become  a  candidate  for  county  seat." 
This  was  also  sustained.  In  Oregon  six  of  the  fifteen  measures 
referred  to  the  voters  have  been  vetoed,  and  the  range  of  public 
interest  in  referred  measures  has  been  about  the  same  as  in  South 
Dakota. 

The  evidence  with  respect  to  the  voting  upon  measures  referred 
to  the  people  under  the  optional  referendum  tends  to  corroborate 
the  inferences  drawn  with  respect  to  the  voting  upon  measures 
referred  under  the  compulsory  constitutional  referendum.  The 
evidence  is  perhaps  insufficient  to  warrant  any  final  conclusions, 
but  so  far  as  it  goes,  it  indicates  that  with  respect  to  the  meas- 
ures in  which  the  voters  are  interested  they  are  able  to  vote  with 
discrimination.  Since  the  voters  are  more  generally  interested 
in  measures  referred  under  the  optional  referendum  than  in  those 
submitted  under  the  compulsory  constitutional  referendum,  it 
follows  that  on  the  whole  the  operation  of  the  optional  referendum 
is  more  satisfactory.  There  is  indeed  no  logical  reason  why  the 
voters  should  not  be  as  capable  of  deciding  the  fate  of  statutes 
referred  to  them  upon  petition  of  a  certain  fraction  of  the  elec- 
torate as  of  deciding  the  fact  of  constitutional  amendments  re- 
ferred to  them  by  mandate  of  the  constitution  itself.  It  is  not 
the  nature  of  the  procedure  under  which  the  reference  is  made, 
but  the  nature  of  the  measure,  that  determines  the  action  of  the 
voters.  The  value  of  right  procedure  for  the  selection  of  meas- 
ures for  reference  to  the  electorate  lies  in  the  desirability  of 
excluding  from  reference  such  measures  as  will  not  interest  the 


DIRECT  LEGISLATION  BY  THE  ELECTORATES      415 

voter.  In  the  case  of  a  measure  referred  by  petition,  there  is  at 
least  the  presumption  that  some  of  the  voters  are  deeply  inter- 
ested in  the  measure.  In  the  case  of  a  measure  referred  by 
constitutional  mandate,  there  is  no  such  presumption.  If  the 
contents  of  the  state  constitutions  had  been  restricted  to  the  im- 
portant matters  which  alone  were  originally  inserted  therein,  there 
would  have  been  such  a  presumption,  but  that  has  not  been  the 
case.  Under  the  conditions  that  prevail  in  most  of  the  states, 
the  presumption  is  rather  that  the  bulk  of  the  proposed  consti- 
tutional amendments  will  be  such  as  the  voters  would  be  glad  to 
leave  to  the  discretion  of  their  representatives  if  they  could. 
There  is,  however,  no  way  of  doing  this,  except  by  abolishing 
the  compulsory  constitutional  referendum,  and  extending  the 
optional  referendum  to  all  constitutional  amendments  proposed 
by  the  state  legislatures. 

The  substitution  of  the  optional  for  the  compulsory  referendum 
on  constitutional  amendments  is  a  change  in  the  political  system 
of  the  states  that  might  well  receive  consideration.  If  the  legis- 
latures could  adopt  uncontested  amendments  without  reference 
to  the  voters,  they  would  be  able  to  reduce  the  time  required  for 
amendments  in  such  cases  by  from  one  to  four  years.  There 
might  often  be  a  great  gain  to  the  public  in  such  a  saving  of  time, 
to  say  nothing  of  the  advantage  of  relieving  the  electorate  from  a 
needless  burden.  The  chief  objections  to  the  change  spring  from 
practical  rather  than  theoretical  considerations. 

EMERGENCY  LEGISLATION 

First,  there  is  the  difficulty  under  the  optional  referendum 
of  giving  to  the  legislature  adequate  power  for  dealing  with 
emergencies  without  imposing  undue  restrictions  upon  the  power 
of  popular  veto.  An  emergency  exists  whenever  an  important 
public  interest  demands  immediate  action,  but  immediate  action 
may  be  prevented,  if  the  necessary  legislation  is  opposed  by  a 
number  of  voters  sufficient  to  file  a  petition  for  a  referendum. 
Either  the  power  to  refer  a  legislative  enactment  to  the  electo- 
rate, that  is,  to  suspend  the  operation  of  a  legislative  enact- 
ment pending  its  approval  or  disapproval  by  the  electorate, 
must  be  restricted,  or  the  ability  of  the  legislature  to  deal 


4i6       STATE  GOVERNMENT  IN  UNITED  STATES 

promptly  and  effectively  with  emergencies  must  be  seriously 
impaired. 

The  states  which  have  adopted  the  optional  popular  referendum 
may  be  divided  into  three  classes  with  respect  to  the  manner 
in  which  they  have  met  this  difficulty.  The  first  class  comprises 
those  states  which  have  chosen  the  first  horn  of  the  dilemma.1 
In  these  states  the  referendum  is  not  applicable  to  measures 
enacted  for  the  purpose  of  dealing  with  an  emergency,  Thus  in 
South  Dakota  the  referendum  is  not  applicable  to  "such  laws  as 
may  be  necessary  for  the  immediate  preservation  of  the  public 
peace,  health,  or  safety,  support  of  the  state  government  and  its 
existing  public  institutions."  In  Oregon,  however,  an  emer- 
gency may  be  constitutionally  declared  only  in  the  case  of  laws 
"necessary  for  the  immediate  preservation  of  the  public  peace, 
health,  or  safety."  All  other  measures,  including  bills  making 
appropriations,  except  when  passed  in  emergencies  as  above  de- 
scribed, are  subject  to  suspension  when  referendum  petitions  are 
filed  against  them.  In  each  of  the  states  of  this  class  an  emer- 
gency is  defined  in  the  terms  of  either  the  South  Dakota  or  the 
Oregon  constitution.  The  legislature  itself,  however,  is  the 
judge  of  the  necessity  of  legislation  in  cases  of  alleged  emergency, 
and  may  declare  the  existence  of  the  emergency  by  an  ordinary 
majority  vote.  If  a  declaration  of  emergency  is  contained  in  the 
preamble  of  a  bill,  the  enactment  of  the  bill  serves  itself  as  a  dec- 
laration of  emergency.  Therefore,  unless  the  legislatures  can 
be  constrained  by  the  courts  to  give  a  very  strict  interpretation 
to  the  expressions  "public  peace,"  "health,"  and  "safety,"  which 
is  undesirable  even  if  possible,  this  solution  of  the  problem  im- 
poses extensive  restrictions  upon  the  power  of  popular  veto. 

The  objections  to  such  a  solution  of  the  problem  are  apparent. 
First,  the  power  of  a  majority  of  the  legislature  to  declare  an 
emergency  is  liable  to  abuse,  for  the  legislators  are  under  strong 
temptation  to  declare  an  emergency  whenever  they  have  reason 
to  fear  that  they  have  acted  without  the  sanction  of  public 
opinion.  Certain  legislatures  seem  almost  to  have  formed  the 
habit  of  forestalling  the  exercise  of  the  popular  veto  as  much  as 
possible  by  passing  all  measures  under  color  of  an  alleged  emer- 

1  South  Dakota,  Oregon,  Montana,  Oklahoma,  Missouri,  Arkansas,  Colorado, 
New  Mexico,  and  Washington. 


DIRECT  LEGISLATION  BY  THE  ELECTORATES      417 

gency,  except  where  the  lack  of  justification  for  such  procedure 
is  too  palpable.  Thus  in  South  Dakota  during  the  first  twelve 
years  after  the  adoption  of  the  optional  referendum  the  legisla- 
ture enacted  1251  measures,  of  which  537  were  declared  to  be 
emergency  measures  and  hence  not  subject  to  the  popular  veto.1 
Whatever  may  be  the  results  of  such  a  practice  in  the  case  of 
statutory  enactments,  its  impropriety  in  the  case  of  constitutional 
amendments  is  beyond  question.  Unless  some  test  of  urgency 
can  be  devised  which  will  not  in  effect  leave  the  decision  to  the 
discretion  of  the  legislature,  the  optional  referendum  cannot  be 
considered  a  satisfactory  substitute  for  the  compulsory  con- 
stitutional referendum. 

A  second  objection  to  the  mode  of  dealing  with  emergencies 
adopted  in  South  Dakota  and  Oregon  is  that,  even  if  the  legisla- 
tures could  be  trusted  not  to  abuse  their  power  to  pass  measures 
in  cases  of  acknowledged  emergency,  there  is  no  agreement  as  to 
what  constitutes  an  emergency.  The  South  Dakota  and  Oregon 
provisions  cannot  both  be  right.  In  the  latter  state,  for  example, 
the  power  of  the  purse  is  fully  reserved  to  the  electorate,  whilst 
in  the  former  appropriation  bills  are  not  subject  to  the  popular 
veto  at  all.  If  there  are  any  doubts  as  to  the  propriety  of  per- 
mitting the  review  of  certain  classes  of  legislative  enactments 
directly  by  the  electorate,  it  would  seem  more  consistent  with  the 
spirit  of  the  referendum  to  authorize  the  voters  to  resolve  those 
doubts  for  themselves.  If  a  choice  must  be  made  between  re- 
stricting the  scope  of  the  popular  veto  and  impairing  the  ability 
of  the  legislature  to  deal  promptly  and  effectively  with  an  emer- 
gency, it  would  be  surprising  if  no  state  chose  the  latter  horn 
of  the  dilemma.  In  fact  this  choice  has  been  made  in  Nevada, 
where  all  measures  without  any  exception  are  subject  to  the 
optional  referendum. 

The  legislature  is  not  altogether  deprived  of  the  power  to  deal 
with  emergencies,  even  if  all  measures  are  subject  to  the  popular 
veto.  In  case  of  emergency,  when  the  operation  of  a  measure 
is  suspended  because  of  a  referendum  petition,  the  legislature  or 
executive  may  order  a  special  election  to  be  held  at  once,  and  if 
the  emergency  be  a  genuine  one,  there  should  be  no  doubt  as  to 
the  action  of  the  voters,  provided  the  proposed  measure  is  really 

1  See  A.  L.  Lowell,  op.  cil.,  p.  175. 

2S 


4i 8        STATE  GOVERNMENT  IN  UNITED  STATES 

necessary  and  appropriate  for  the  occasion.  In  fact,  the  actual 
abuse  of  the  power  to  suspend  the  operation  of  an  act  by  filing 
a  referendum  petition  against  it  has  been  of  an  entirely  different 
sort.  Measures  have  been  enacted  with  the  support  of  a  strong 
and  clearly  preponderant  public  opinion,  against  which  referen- 
dum petitions  have  been  filed,  not  so  much  in  the  hope  that 
measures  might  ultimately  be  defeated,  as  in  order  to  postpone 
for  nearly  two  years  the  execution  of  an  unwelcome  public  policy. 
In  several  states,  for  example,  the  enforcement  of  laws  creating 
public  service  commissions  or  otherwise  providing  for  the  regula- 
tion of  public  utilities  has  thus  been  postponed  through  the  filing 
of  referendum  petitions  by  representatives  of  the  corporate  in- 
terests to  be  affected  thereby.  In  short,  a  satisfactory  solution  of 
the  problem  of  emergency  legislation  is  not  to  be  found  by  grasp- 
ing either  horn  of  the  dilemma. 

The  third  class  of  states  comprises  those  which  have  attempted 
to  safeguard  the  power  of  the  legislatures  to  deal  with  emergencies 
without  unduly  restricting  the  power  of  the  electorate  to  veto 
legislative  enactments.1  The  legislatures  of  these  states  are 
authorized  to  declare  the  existence  of  an  emergency,  but  only  by 
a  two-thirds  vote  of  all  the  elected  members.  The  operation  of 
emergency  measures  may  not  be  suspended  by  filing  a  referendum 
petition  against  them,  but  they  may  be  disapproved  at  a  subse- 
quent election.  In  each  of  these  states  certain  kinds  of  measures 
may  under  no  circumstances  be  passed  in  the  guise  of  emergency 
measures.  In  California,  for  example,  no  measure  creating  or 
abolishing  any  office,  or  changing  any  salary,  term,  or  duties  of 
any  officer,  or  granting  any  franchise  or  special  privilege,  or  creat- 
ing any  vested  right  or  privilege,  may  be  declared  an  "urgency" 
measure.  Thus  the  popular  veto  power  is  not  actually  restricted, 
nor  is  the  ability  of  the  legislature  to  deal  with  real  emergencies 
seriously  impaired. 

THE  QUESTION  OF  SIGNATURES 

A  second  practical  difficulty  with  the  referendum,  it  is  some- 
times asserted,  arises  from  the  necessity  of  protecting  the  public 
against  the  abuse  of  the  referendum  for  the  purpose  of  delaying 
1  Maine,  California,  Arizona. 


DIRECT  LEGISLATION  BY  THE  ELECTORATES      419 

the  enforcement  of  measures  which  the  electorate  may  be  ex- 
pected eventually  to  approve.  In  a  few  states  there  has  been  an 
attempt  to  prevent  this  abuse  by  requiring  the  signatures  of  a 
larger  percentage  of  the  electorate  to  referendum  petitions  de- 
signed to  suspend  the  enforcement  of  a  law  than  to  those  which 
provide  for  the  reference  of  a  measure  to  the  voters  without  sus- 
pending its  operation  prior  to  the  election.  Thus  in  Montana 
the  percentages  required  are  15  per  cent  in  the  former  case  and 
5  per  cent  in  the  latter ;  in  New  Mexico  they  are  25  per  cent  in 
the  former  case  and  10  per  cent  in  the  latter.  The  question  of 
percentages,  however,  is  an  important  one,  and  requires  special 
consideration. 

The  requirement  that  a  petition  for  the  reference  of  a  legisla- 
tive enactment  to  the  electorate  for  approval  or  disapproval  be 
signed  by  not  less  than  a  stated  number  of  voters  serves  several 
purposes.  First,  it  is  desirable  that  no  measure  should  be  referred 
to  the  voters  unless  there  is  some  reason  to  suppose  that  the 
action  of  the  legislature  will  not  be  approved  by  a  majority  of 
the  voters.  Secondly,  it  is  desirable  that  no  measure  be  referred 
unless  there  is  some  reason  to  suppose  that  the  electorate  will  be 
sufficiently  interested  to  express  a  genuine  opinion  thereon. 
Thirdly,  it  is  desirable  that  no  more  measures  be  referred  at  any 
one  time  than  the  voters  can  reasonably  be  expected  to  consider 
on  their  individual  merits.  Evidently  the  question  of  how  many 
signatures  should  be  required  on  a  referendum  petition  is  one  to 
which  a  final  answer  can  be  obtained  only  from  experience.  In 
most  of  the  states  the  signatures  of  5  per  cent  of  the  voters  are 
required  to  complete  a  petition  for  the  reference  of  a  statute  to 
the  electorate  for  approval  or  disapproval.  In  some  of  the 
states  there  is  a  further  requirement  that  the  signatures  be  ob- 
tained in  not  less  than  a  certain  proportion  of  the  counties  of  the 
state.1  The  latter  provision  is  intended  presumably  to  insure 
that  the  demand  for  an  appeal  to  the  electorate  is  not  concen- 
trated in  a  particular  locality,  but  state-wide  and  general  in 
character.  Its  chief  effect  is  to  favor  the  rural  as  against  the 
urban  voters. 

In  practice  the  collection  of  signatures  to  referendum  petitions 
is  not  so  managed  as  to  throw  much  light  on  the  real  convictions 

1  Two-fifths,  in  Nebraska ;   two-thirds,  in  Missouri. 


420       STATE  GOVERNMENT  IN  UNITED  STATES 

of  the  voters.  Whether  signatures  are  collected  by  voluntary  or 
by  paid  workers,  many  arguments  are  likely  to  be  employed 
other  than  those  pertaining  to  the  merits  of  the  measure  in  ques- 
tion, and  many  signatures  are  likely  to  be  secured,  not  because 
the  signer  desires  to  vote  against  the  measure,  or  has  indeed  any 
definite  opinion  upon  it,  but  because  he  desires  to  accommodate 
a  friend,  or  conciliate  a  customer  or  business  acquaintance,  or 
get  rid  of  an  importunate  caller,  or  simply  thinks  that  the  oppo- 
nents of  a  measure  are  entitled  to  appeal  to  the  electorate,  if  they 
wish,  and  should  receive  help  from  all  voters  who  may  sometime 
in  their  turn  likewise  desire  to  appeal  to  the  electorate.  In  fact, 
signatures  are  generally  collected  by  paid  canvassers,  whose  com- 
pensation depends  upon  the  number  of  signatures  they  obtain. 
At  the  rate  of  five  cents  per  signature  a  referendum  petition  would 
cost  from  $500  in  a  state  like  Oregon  to  $5000  in  a  state  like  Ohio, 
and  the  requirement  that  such  a  petition  be  filed  therefore 
amounts  in  such  a  case  to  a  requirement  that  a  corresponding 
amount  of  money  be  forfeited,  so  to  speak,  as  a  fee  for  the  appeal 
to  the  electorate.  If  the  money  were  actually  paid  as  a  fee  to 
the  state  and  expended  under  authority  of  the  state  in  publish- 
ing authentic  information  concerning  the  measure,  instead  of 
in  payment  of  the  cost  of  collecting  the  signatures,  it  would  seem 
likely  that  the  electorate  would  be  better  informed  concerning 
the  merits  of  the  measure  than  it  is  by  oral  discussions  with  can- 
vassers for  signatures,  and  that  the  evidence  as  to  a  public  de- 
mand for  a  referendum  on  the  measure  would  be  no  less  convinc- 
ing. 

The  value  of  a  formal  petition  as  a  means  of  expressing  public 
opinion  has  probably  been  overrated.  The  filing  of  a  petition 
does  not  prove  much  concerning  the  real  beliefs  of  those  who 
sign  it.  When  the  number  of  signatures  is  fixed  at  a  low  figure, 
say,  5  per  cent  of  the  total  electorate,  the  requirement  apparently 
has  not  kept  many  measures  off  the  ballot  which  opponents  were 
determined  should  go  to  the  voters.  When  the  number  of  signa- 
tures is  fixed  at  a  higher  figure,  on  the  other  hand,  the  labor  of 
securing  additional  names  increases  at  a  disproportionate  rate, 
so  that  the  cost  of  a  petition  signed  by  20  per  cent  or  25  per  cent 
of  the  electorate  will  be  much  more  than  four  or  five  times  the 
cost  of  a  5  per  cent  petition.  Indeed,  what  evidence  there  is  — 


it  is  not  much  —  suggests  that  the  requirement  of  a  25  per  cent 
petition  is  practically  prohibitive.  The  existing  system  is  super- 
ficially democratic.  Actually,  however,  it  operates  to  the  ad- 
vantage of  permanent  well-organized  interests,  such  as  liquor 
dealers,  for  example,  and  to  the  disadvantage  of  those  that  can 
least  afford  to  bear  the  burden  of  needless  expense.  Yet  these 
are  the  kinds  of  groups  whose  appeals  to  the  voters  are  most  to 
be  encouraged. 

A  better  plan  would  seem  to  be  to  require  persons  proposing 
to  appeal  to  the  electorate  for  the  veto  of  a  legislative  enactment 
to  deposit  with  the  state  a  sum  sufficient  to  defray  the  cost  of 
sending  to  all  voters  an  adequate  explanation  of  the  nature  of 
the  measure  to  be  referred  to  them,  and  of  the  reasons  for  which 
its  opponents  seek  its  defeat,  subject  perhaps  to  the  proviso  that 
if  the  measure  is  defeated,  the  money  shall  be  refunded.  Such 
a  requirement  would  produce  sufficient  evidence  of  good  faith  on 
the  part  of  the  opponents,  and  if  the  governor  has  the  power,  as 
is  the  case  in  some  states,  to  call  a  special  election,  when  deemed 
necessary,  there  should  be  no  serious  abuse  of  the  right  to  appeal 
to  the  electorate,  simply  for  the  purpose  of  delay. 

OFFICIAL  BULLETINS  OF  INFORMATION 

Several  of  the  states  that  possess  the  optional  referendum  have 
made  provision  for  the  publication  of  official  bulletins  for  the 
better  dissemination  of  information  upon  measures  referred  to  the 
voters.1  These  bulletins  contain  copies  of  the  referred  measures, 
together  with  arguments  thereon,  prepared  by  the  advocates  and 
opponents  of  the  measures,  and  are  mailed  to  all  registered  voters 
several  weeks  before  the  election.  The  expense  of  printing  the 
arguments  is  usually  assessed  upon  those  who  prepare  them, 
the  state  paying  the  balance  of  the  cost.  These  "voters'  text- 
books," as  they  are  sometimes  called,  have  proved  a  cheaper  and 
more  effective  medium  for  reaching  the  electorate  than  newspaper 
advertising  at  public  expense,  which  is  the  practice  in  a  few 
states,2  and  have  been  instrumental  in  assisting  the  voters  to  vote 

1  Oregon,  South  Dakota,  California,  Arizona,  Montana,  Nebraska,  Ohio,  and 
Washington. 

*  Colorado  and  Arkansas. 


422       STATE  GOVERNMENT  IN  UNITED  STATES 

upon  measures  intelligently.  In  Oregon  and  California,  where 
the  joint  operation  of  the  compulsory  referendum  on  constitu- 
tional amendments  and  of  the  optional  referendum  on  statutes 
has  thrown  a  comparatively  heavy  burden  on  the  voters,  and 
where  the  official  bulletins  are  said  to  be  carefully  read  by  many 
of  them,  there  is  far  more  evidence  of  discrimination  between 
measures  than  in  such  a  state  as  Missouri,  where  the  burden  of 
the  referendum  has  also  been  comparatively  heavy  and  where 
there  has  hitherto  been  no  official  bulletin  of  information. 

It  is  not  easy  to  determine  just  how  effective  the  official  cam- 
paign bulletins  are  as  a  means  of  educating  the  electorate.  In 
Oregon  the  use  of  the  pamphlet  for  the  publication  of  arguments 
upon  measures  referred  to  the  voters  is  optional  with  the  supporters 
and  opponents  of  the  measures.  In  only  a  small  proportion  of 
cases  are  both  affirmative  and  negative  arguments  published.  Half 
of  the  referred  measures  have  been  published  in  the  pamphlet  with- 
out any  arguments.  Nor  is  there  any  relation  between  the  publi- 
cation of  arguments  and  the  results  of  the  voting  on  the  measures. 
Of  the  measures  accompanied  by  affirmative  arguments  alone 
more  were  accepted  than  rejected,  and  of  the  measures  accom- 
panied by  negative  arguments  alone,  more  were  rejected  than 
accepted.  But  the  total  number  of  measures  referred  to  the  elec- 
torate by  means  of  the  optional  referendum  is  comparatively 
small,  and  the  relation  between  the  publication  of  arguments  and 
the  decision  by  the  voters  uncertain.  There  has  been  no  per- 
ceptible tendency  on  the  part  of  the  opponents  and  supporters 
of  measures  referred  to  the  voters  by  means  of  the  optional  refer- 
endum towards  a  more  general  use  of  the  privilege  of  publishing 
arguments  in  the  official  bulletin.  Apparently  those  who  are 
most  concerned  have  not  yet  been  convinced  by  experience  with 
the  Oregon  pamphlet  that  official  publicity  pays,  nor  have  they 
been  convinced  that  it  does  not  pay.  In  California  arguments 
on  each  side  of  every  measure  referred  to  the  electorate  must 
be  published  in  the  pamphlet,  together  with  the  text  of  the 
measures,  and  provision  is  made  for  the  preparation  of  the 
arguments  by  members  of  the  legislature  or  other  responsible 
persons.  A  comparison  of  the  California  and  Oregon  pamphlets 
shows  that  the  arguments  and  information  laid  before  the  voters 
in  the  former  state  are  more  complete  and  more  adequate  than 


DIRECT  LEGISLATION  BY  THE  ELECTORATES      423 

in  the  latter,  and  the  California  pamphlet  is  presumably  a  more 
effective  aid  to  the  voter. 

Though  the  degree  of  effectiveness  of  the  official  bulletin  as 
a  medium  of  publicity  cannot  be  accurately  determined,  and 
doubtless  varies  in  different  states  according  to  the  character  and 
condition  of  the  voters,  it  cannot  fail  to  be  of  considerable  value 
in  the  development  of  the  referendum  as  an  educational  discipline. 
The  clearest  evidence  of  this  is  the  marked  increase  in  the  propor- 
tion of  voters  attending  the  polls  who  have  voted  on  constitutional 
amendments  proposed  by  the  legislature  that  has  occurred  since 
the  adoption  of  the  optional  referendum  and  the  publication 
of  an  official  bulletin.  In  California  during  the  ten  years  1899 
to  1908  the  average  vote  on  the  fifty-one  measures  submitted  by 
the  legislature,  indicated  as  a  percentage  of  the  total  attendance 
at  the  polls,  was  forty- three  per  cent.  In  1914,  when  the  system 
of  direct  action  upon  measures  by  the  electorate  was  subjected 
to  the  severest  test  ever  imposed  in  any  state,  the  result  was  as 
follows : 

NUMBER   OF  MEASURES  SUB-  MAXIMUM  AND  MINIMUM  AVERAGE  PER  CENT  or 

MITTED  BY  MEANS  or  VOTE  ON  MEASURES  TOTAL  VOTJC  FOR  GOVERNOR 

initiative  17  (56^31)  73% 

/755,45Q\ 

optional  referendum  4  73% 

\6n,797/ 

legislative   and    com-  /674,420\ 

pulsory  constitutional         27  I  ~l     r~)  60% 

referendum  ™  **"  ' 

Despite  the  heavy  burden  laid  upon  the  voters  by  the  combined 
operation  of  the  initiative  and  referendum,  they  voted  more  gen- 
erally upon  measures  submitted  by  the  legislature  than  ever 
before.  In  Colorado  during  the  ten  years  1899  to  T9O8  the 
average  recorded  vote  upon  the  seventeen  measures  submitted 
by  the  legislature  was  thirty-seven  per  cent  of  the  total  recorded 
vote.  The  initiative  and  referendum  were  adopted  in  1910, 
a  year  before  their  adoption  in  California,  but  there  is  no 
official  bulletin  or  other  provision  for  publicity  except  in  the 
newspapers.  The  result  of  the  voting  on  measures  in  1914 
was  as  follows: 


424       STATE  GOVERNMENT  IN  UNITED  STATES 

NUMBER  OF  MEASURES  SUB-  MAXIMUM  AND  MINIMUM  AVERAGE  PER  CENT  OF 

MUTED  BY  MEANS  or  VOTE  ON  MEASURES,  TOTAL  VOTE  FOR  GOVERNOR 

initiative 


, 
^f.)  42% 

legislative    and    com- 

pulsory  constitutional        3  "Z  4°% 

referendum 

Doubtless  the  greater  increase  of  interest  in  measures  submitted 
by  the  legislature  in  California  than  in  Colorado  since  the  adop- 
tion of  the  initiative  and  referendum  cannot  be  explained  wholly 
by  the  adoption  of  better  means  of  publicity.  The  evidence, 
however,  such  as  it  is,  tends  to  confirm  the  presumption  that  an 
official  bulletin  like  that  of  California  will  materially  help  to 
arouse  the  interest  and  inform  the  intelligence  of  the  voters. 

The  tendency  among  the  states  which  have  adopted  the 
optional  referendum  is  towards  the  adoption  and  further  develop- 
ment of  the  official  bulletin.  In  1914  official  bulletins  were  pub- 
lished in  eight  states,  and  the  voting  on  measures  was  more  gen- 
eral in  those  states  than  in  the  states  where  there  was  no  official 
bulletin.  Of  the  various  bulletins,  that  published  in  California 
was  the  best,  both  in  form  and  in  substance. 

OPTIONAL  V.  COMPULSORY  REFERENDUM 

Whether  the  optional  referendum  has  yet  so  proved  its  worth 
as  to  justify  the  complete  abandonment  of  the  compulsory  ref- 
erendum may  be  questioned.  With  respect  to  various  matters 
of  detail  the  practice  of  the  several  states  differs,  and  further  ex- 
perience may  be  necessary  before  a  standard  form  of  the  optional 
referendum  is  developed.  Yet  it  is  already  clear  that  the  optional 
referendum,  under  the  proper  conditions  and  rightly  used,  satis- 
fies the  two  tests  of  good  government.  As  Mill  phrases  it,  "gov- 
ernment is  to  be  judged  by  its  action  upon  men  and  by  its  action 
upon  things  ;  by  what  it  makes  of  the  citizens  and  what  it  does 
with  them."  Judged  by  either  test,  the  optional  referendum 
upon  legislative  enactments  has  proved  in  the  main  a  better 
governmental  device  than  the  compulsory  referendum  on  con- 
stitutional amendments  proposed  by  the  state  legislatures.  It 


DIRECT  LEGISLATION  BY  THE  ELECTORATES      425 

is  a  more  efficient  instrument  both  for  the  correction  of  misrep- 
resentative  action  on  the  part  of  the  legislatures  and  for  the 
education  of  the  voters  themselves. 

The  substitution  of  the  optional  for  the  compulsory  referen- 
dum upon  constitutional  amendments  proposed  by  the  state 
legislatures  would  have  the  effect  of  diminishing  the  existing  dis- 
tinction between  constitutional  and  ordinary  statute  law.  Now 
the  process  of  constitutional  amendment  upon  legislative  initia- 
tive, as  established  in  almost  all  states,  requires  the  approval  of 
all  proposed  amendments  by  the  people.  If  that  approval  were 
dispensed  with,  except  in  the  case  of  such  amendments  as  should 
be  brought  before  the  electorate  under  the  optional  referendum, 
the  status  of  amendments  not  referred  to  and  formally  approved 
by  the  electorate  might  seem  less  secure  than  that  of  those  ordi- 
nary laws  expressly  approved  by  the  electorate.  To  be  sure,  the 
legislatures  are  usually  forbidden  to  propose  constitutional 
amendments  by  bare  majorities,  but  legislatures  are  also  for- 
bidden to  adopt  some  kinds  of  ordinary  legislation  by  bare  majori- 
ties. In  fact,  the  original  distinction  between  constitutional 
and  statutory  law  has  already  been  so  far  impaired  by  the  inser- 
tion of  ordinary  legislation  in  the  state  constitutions  that  the 
preservation  of  the  distinction  in  its  present  form  is  of  doubtful 
utility.  It  is  for  that  very  reason  that  it  is  proposed  to  substitute 
the  optional  for  the  compulsory  referendum  on  constitutional 
amendments.  The  legislatures  have  shown  themselves  incapable 
of  maintaining  the  distinction  in  any  logical  form,  and  for  the 
revival  of  the  traditional  distinction,  which  is  important,  the 
public  may  confidently  look  to  its  more  direct  representative,  the 
electorate.  Whether  the  compulsory  referendum  should  be  re- 
tained for  certain  classes  of  amendments,  as  it  now  exists  for  cer- 
tain classes  of  ordinary  legislation,  is  a  question  that  will  be  con- 
sidered presently.  It  is  enough  to  point  out  here  that  the  vital 
distinction  between  constitutional  and  statutory  law  does  not  re- 
side in  the  character  of  the  procedure  for  its  enactment,  but  in 
the  importance  attached  to  the  substance  of  the  law  itself. 

There  can  be  no  doubt  that  the  referendum  is  now  permanently 
established  among  the  political  institutions  of  the  states.  There 
is  no  question  of  abandoning  it.  The  only  questions  concerning 
which  there  are  still  serious  differences  of  opinion  relate  to  the  form 


426       STATE  GOVERNMENT  IN  UNITED  STATES 

in  which,  and  the  conditions  under  which,  it  shall  be  used.  In 
the  majority  of  states  the  referendum  still  exists  only  in  the  man- 
datory form,  and  is  applicable  only  to  constitutional  amendments, 
and,  in  some  of  these  states,  to  certain  classes  of  ordinary  legis- 
lation. In  a  large  minority  of  the  states  it  exists  also  in  the  op- 
tional form,  and  is  applicable  to  most  of  the  ordinary  legislation. 
A  comparative  study  of  the  operation  of  the  referendum  in  each 
of  its  forms  throws  much  light  on  the  problems  which  still  remain 
unsettled.  '<$} 

The  evidence  indicates  that  the  referendum,  like  any  other 
political  institution,  is  an  imperfect  instrument,  which  works 
better  under  some  conditions  than  under  others.  The  first  limi- 
tation upon  its  most  effective  use  is  one  of  number.  The  greatest 
number  of  measures  hitherto  brought  before  the  voters  at  one 
time  by  the  operation  of  the  referendum  is  forty- two.  These 
were  all  constitutional  amendments,  proposed  by  a  constitu- 
tional convention  in  Ohio  in  1912,  and  submitted  to  the  voters  at  a 
special  election.  The  greatest  number  of  measures  of  legislative 
origin  hitherto  brought  before  the  voters  at  one  time  by  the  opera- 
tion of  the  referendum  is  thirty-one.  Of  these  twenty-seven  were 
submitted  by  direction  of  the  legislature  and  four  by  means  of 
the  optional  referendum  at  the  regular  election  in  California  in 
1914.  In  both  states  the  action  of  the  electorate  was  generally 
conceded  to  have  been  deliberate  and  on  most  of  the  measures 
intelligent.  Yet  it  was  clear  that  the  number  of  measures  was 
greater  than  the  voters  could  easily  dispose  of.  There  was  a 
general  opinion  that  the  burden  laid  upon  the  electorate  was 
excessive.  The  average  number  of  measures  brought  before  the 
voters  by  means  of  the  optional  referendum  alone  is  not  more 
than  two  or  three,  and  the  evidence  indicates  that  this  number 
of  measures  can  be  easily  handled  by  the  voters.  When  the 
number  becomes  excessive,  the  voters  have  a  way  of  voting  "no" 
on  all  or  most  of  the  measures  without  much  regard  to  their 
several  merits.  This  remedy  has  been  most  conspicuously  ap- 
plied in  Missouri.  In  that  state  the  presence  of  much  statutory 
matter  in  the  constitution  occasions  the  submission  of  numerous 
amendments,  and  inadequate  provision  is  made  for  the  informa- 
tion of  the  electorate.  In  1914  eight  constitutional  amendments 
were  submitted  by  the  legislature  and  four  legislative  measures 


DIRECT  LEGISLATION  BY  THE  ELECTORATES      427 

were  submitted  by  means  of  the  optional  referendum,  all  of  which 
were  defeated  by  large  majorities,  though  some  were  apparently 
not  without  merit.  In  short,  beyond  a  certain  point  any  further 
increase  in  the  number  of  measures  submitted  is  not  likely  to 
bring  a  corresponding  increase  in  the  efforts  of  the  electorate  to 
understand  the  issues.  Hence  beyond  that  point  the  greater 
the  number  of  measures,  the  less  satisfactory  will  be  the  result. 
It  is  not  possible  to  determine  just  when  that  point  is  reached, 
and  probably  that  point  is  reached  more  quickly  in  some  states 
than  in  others.  No  two  electorates  are  precisely  alike  with  re- 
spect either  to  innate  political  capacity  or  to  habits  of  mind. 
The  abuse  of  the  optional  referendum  by  submitting  too  many 
measures  to  the  voters  at  the  same  time,  however,  is  one  for  which 
the  voters  have  the  best  remedy  in  their  own  hands.  For  that 
reason  it  is  the  compulsory  rather  than  the  optional  referendum, 
the  use  of  which  should  be  curtailed  in  those  states  in  which  the 
total  number  of  measures  brought  before  the  electorate  by  means 
of  the  referendum  is  felt  to  be  excessive. 

The  second  limitation  upon  the  most  effective  use  of  the  refer- 
endum is  one  of  kin^.  The  operation  of  the  optional  and,  more 
clearly,  that  of  the  compulsory  referendum  reveals  the  reluctance 
of  many  voters  to  express  an  opinion  upon  matters  outside  the 
range  of  their  personal  experience.  The  mass  of  the  voters,  for 
example,  will  generally  vote  freely  on  measures  relating  to  the 
organization  or  powers  of  juries,  but  not  on  measures  relating  to 
the  organization  or  powers  of  the  higher  courts.  They  know 
whether  or  not  they  wish  to  prohibit  the  sale  of  intoxicating 
liquors,  but  are  not  so  certain  with  respect  to  the  desirability  of 
concentrating  the  responsibility  for  the  management  of  all  chari- 
table and  penal  institutions  in  a  single  state  board  of  control. 
As  President  Lowell  has  said,  "it  would  seem  wiser,  therefore,  to 
confine  the  referendum  to  questions  involving  general  principles 
alone,  and  to  the  class  of  matters  where  the  public  is  normally 
familiar  with  the  facts  required  for  a  decision,  than  to  extend  it 
promiscuously  to  questions  where  a  rational  opinion  can  be 
formed  only  by  a  knowledge  of  details  with  which  the  ordinary 
man  does  not  readily  become  acquainted."  1  Experience  shows 
that  it  is  the  compulsory  rather  than  the  optional  form  of  therefer- 

1  A.  L.  Lowell,  Public  Opinion  and  Popular  Government,  p.  I.<;Q. 


428       STATE  GOVERNMENT  IN  UNITED  STATES 

endum  which  is  mainly  responsible  for  the  submission  of  the 
wrong  kind  of  measures  to  the  voters,  just  as  it  is  the  compulsory 
rather  than  the  optional  form  which  is  mainly  responsible  for  the 
submission  of  the  excessive  number  of  measures.  If  the  refer- 
endum is  to  be  used  under  the  most  favorable  conditions,  therefore, 
it  would  seem  to  be  necessary  to  restrict  its  use  under  the  compul- 
sory form  and  to  extend  its  use  under  the  optional  form.  In 
short,  it  would  seem  not  only  that  the  referendum  has  come  to 
stay,  but  also  that  the  optional  form  should  tend  more  and  more 
to  prevail. 

WORKING  OF  THE  DIRECT  POPULAR  INITIATIVE 

The  referendum  is  commonly  connected  in  political  discussions 
with  the  initiative.  The  literature  relating  to  the  subject  almost 
invariably  treats  them  as  if  they  were  inseparable.  In  practical 
politics  also  the  two  have  generally  been  found  together.  Only 
two  of  the  twenty-four  states  which  have  submitted  to  the  elec- 
torate proposals  to  establish  the  optional  referendum  have  failed 
at  the  same  time  to  submit  the  direct  popular  initiative. 

The  two  devices,  however,  are  distinct,  and  should  be  care- 
fully distinguished  in  all  discussions  of  the  work  of  the  state  elec- 
torates. The  referendum  enables  the  electorates  to  disapprove 
and  thereby  annul  a  measure  adopted  by  the  legislature,  and  has 
on  that  account  been  termed,  as  has  been  said,  the  popular  veto, 
or  more  properly,  the  electoral  veto.  The  initiative  enables  the 
electorate  itself  to  adopt  a  measure  disapproved  and  therefore  not 
adopted  by  the  legislature.  It  has  been  accordingly  termed  the 
procedure  for  direct  legislation  by  the  people,  or  more  properly, 
by  the  electorate.  Ordinarily  this  expression  is  understood  to  in- 
clude both  the  referendum  and  initiative,  but  such  usage  of  the 
term  is  inaccurate  and  objectionable.  The  procedure  for  direct 
legislation  by  the  electorate  is  necessarily  completed  by  a  popular 
vote,  and  to  that  extent  the  initiative  resembles  the  referendum, 
but  in  all  the  earlier  stages  of  the  procedure  the  differences  are 
more  important  than  the  resemblances.  The  vital  distinction 
between  them  consists  in  the  fact  that  under  the  referendum  no 
measure  can  come  before  the  electorate  unless  previously  ap- 
proved by  the  legislature,  whilst  under  the  initiative  no  measure 


DIRECT  LEGISLATION  BY  THE  ELECTORATES      429 

comes  before  the  electorate  if  it  has  been  previously  approved  by 
the  legislature. 

So  far  as  the  procedure  for  direct  legislation  by  the  electorate 
is  identical  with  that  for  the  exercise  of  the  electoral  veto,  it  may 
be  expected  to  operate  in  the  same  manner.  Whether  a  measure 
originates  within  or  without  the  legislature  is  in  itself  immaterial 
to  the  electorate.  It  is  not  the  origin  but  the  nature  of  the 
measure  that  concerns  the  voters,  when  it  is  submitted  to  them. 
If  the  voters  can  act  intelligently  on  measures  brought  before 
them  by  means  of  the  referendum,  they  can  also  act  intelligently 
on  measures  submitted  to  their  decision  by  means  of  the  initia- 
tive, other  things  being  equal.  In  other  words,  unless  it  can  be 
shown  that  measures  brought  before  the  voters  by  means  of  the 
initiative  tend  to  differ  in  some  definite  way  from  measures 
brought  before  them  by  means  of  the  referendum,  there  is  no 
reason  to  suppose  that  the  electorate  will  be  less  capable  of  decid- 
ing wisely  in  the  one  case  than  in  the  other.  The  first  question 
that  arises,  therefore,  in  connection  with  the  initiative  is  not 
whether  the  voters  can  be  trusted  to  use  with  discretion  the  power 
of  direct  legislation,  but  what,  as  a  matter  of  fact,  are  the  char- 
acteristic differences,  if  any,  between  initiated  and  referred 
measures. 

If  there  were  any  marked  differences  between  initiated  and  re- 
ferred measures,  it  might  be  supposed  that  these  differences 
would  be  reflected  in  the  results  of  the  voting  thereon.  If,  for 
example,  initiated  measures,  as  a  class,  were  generally  felt  to  be 
less  important  than  referred  measures,  the  voting  thereon  should 
be  less  general.  If  the  purposes  of  initiated  measures  were  gen- 
erally considered  more  objectionable,  the  election  returns  should 
show  that  a  larger  proportion  of  them  are  defeated.  If  their 
drafting  and  technical  detail  were  generally  found  to  be  less  per- 
fect, the  fact  should  appear  in  a  growing  distrust  of  initiated  as 
contrasted  with  referred  measures,  and  an  increasing  tendency 
to  reject  those  which  have  failed  to  secure  legislative  approval. 

In  fact,  the  action  of  the  electorates  upon  measures  submitted 
by  means  of  the  initiative  has  hitherto  not  been  markedly  differ- 
ent from  its  action  upon  measures  submitted  by  means  of  the  op- 
tional referendum.  In  each  case  the  interest  in  the  measures 
brought  before  the  voters,  as  indicated  by  the  voting  thereon, 


430        STATE  GOVERNMENT  IN  UNITED  STATES 

has  been  conspicuously  greater  than  in  measures  submitted  by 
means  of  the  compulsory  constitutional  referendum.  As  in  the 
case  of  the  measures  submitted  by  means  of  the  optional  referen- 
dum nearly  one  half  of  the  measures  submitted  by  means  of  the 
initiative  have  been  voted  on  by  not  less  than  three-fourths  of 
those  who  have  gone  to  the  polls,  and  only  a  small  minority  of 
the  measures  have  failed  to  interest  a  majority  of  the  voters. 
The  degree  of  interest  shown  by  the  voters  in  measures  submitted 
by  means  of  the  initiative  has  been  on  the  whole  a  little  greater 
than  that  in  measures  brought  before  the  voters  by  means  of  the 
optional  referendum.  This  result,  however,  seems  to  be  due 
mainly  to  the  exceptional  interest  aroused  by  certain  measures 
not  infrequently  brought  before  the  voters  by  means  of  the 
initiative,  rather  than  to  any  generally  greater  interest  in  ini- 
tiated measures  as  such.  The  initiated  measures  which  have 
aroused  the  most  interest  have  related  to  such  matters  as  the 
regulation  of  the  traffic  in  intoxicating  liquors,  taxation  and  the 
use  of  public  credit,  and  the  extension  of  the  suffrage  to  women. 
They  have  raised  clean-cut  issues,  in  the  decision  of  which  most 
voters  have  felt  a  direct  personal  interest.  With  the  exception 
of  the  measures  relating  to  taxation,  they  have  generally  involved 
questions  of  principle  only,  unconfused  by  questions  of  detail  or 
of  ways  and  means.  Other  matters  with  respect  to  which  much 
legislation  has  been  proposed  by  means  of  the  initiative,  and 
upon  which  comparatively  large  votes  have  been  cast,  are  public 
education  and  improvements,  the  regulation  of  public  utilities,  the 
regulation  of  conditions  of  industrial  employment,  and  the  reform 
of  systems  of  nomination  and  election  to  public  office.  In  short, 
the  questions  that  have  aroused  most  interest  are  substantially 
the  same  as  those  which  have  aroused  most  interest  when  raised 
by  means  of  the  optional  referendum.  So  far  as  the  degree  of 
interest  in  initiated  measures  in  general  is  an  indication  of  their 
character,  the  evidence  does  not  indicate  that  there  are  any 
marked  differences  in  the  character  of  initiated  and  referred 
measures  respectively. 

The  evidence  afforded  by  the  election  returns  is  a  little  more 
illuminating  with  reference  to  the  relative  acceptability  of  ini- 
tiated and  referred  measures.  Of  the  209  initiated  measures, 
which  had  been  brought  before  the  voters  in  14  states  down 


DIRECT  LEGISLATION  BY  THE  ELECTORATES      431 


to  the  close  of  1914,  86  were  approved  by  a  majority  of 
those  voting  thereon,  and  81  were  legally  adopted.  The 
other  128  failed  of  adoption.  It  is  evident,  therefore,  that  a 
smaller  proportion  of  the  measures  brought  before  the  electorates 
by  means  of  the  initiative  have  been  adopted  than  of  those 
brought  up  by  means  of  the  optional  referendum.  The  fate  of 
the  initiated  measures  has  not  apparently  been  affected  by  the 
fact  that  1 20  of  them  were  proposed  statutes  and  the  other  89 
proposed  constitutional  amendments.  The  proportion  adopted 
was  substantially  the  same  in  each  case.  So  far  as  these  figures 
indicate  anything  with  respect  to  the  operation  of  the  initiative 
and  of  the  referendum,  respectively,  they  indicate  that  the  persons 
responsible  for  the  submission  of  measures  to  the  electorates 
have  been  somewhat  more  successful  when  they  have  appealed 
to  the  voters  to  veto  measures  which  the  legislatures  had  approved 
than  when  they  have  appealed  to  the  voters  to  adopt  measures 
which  the  legislatures  had  not  approved.  The  difference,  how- 
ever, between  the  proportion  of  measures  adopted  under  the 
initiative  and  under  the  optional  referendum  is  not  great  enough 
to  warrant  any  definite  conclusions. 

The  evidence  with  respect  to  the  growth  of  a  tendency  to  dis- 
trust measures  submitted  by  means  of  the  initiative  is  perhaps 
a  little  more  significant.  In  Oregon  the  number  of  initiated  meas- 
ures submitted  to  the  voters  and  the  results  of  the  voting  thereon 
in  each  year  since  the  adoption  of  the  initiative  is  as  follows : 


YEA* 

MEASURES  SUBMITTED 

MEASURES  ADOPTED 

1904 

2 

2 

1906 

10 

7 

1908 

II 

8 

1910 

25 

8 

1912 

28 

8 

1914 

19 

5 

The  proportion  of  initiated  measures  adopted  by  the  voters  has 
steadily  declined.  Yet  it  would  be  a  mistake  to  infer  too  much 
from  these  figures.  Oregon  is  only  one  of  fourteen  states  in  which 
the  initiative  has  been  put  to  use.  In  the  other  states  not  much 


432        STATE  GOVERNMENT  IN  UNITED  STATES 

use  of  the  initiative  was  made  prior  to  1912,  and  although  a 
larger  proportion  of  initiated  measures  in  these  other  states 
was  rejected  in  1914  than  in  1912,  the  voters  were  everywhere 
more  conservative  in  1914  than  in  1912,  and  the  rejection  of  a 
greater  proportion  of  the  initiated  measures  may  have  been  due 
rather  to  the  conservative  feelings  of  the  voters  in  general  than  to 
any  special  distrust  of  initiated  measures  in  particular.  In 
short,  much  caution  is  necessary  in  interpreting  the  election  re- 
turns relating  to  measures  submitted  to  the  voters  by  means  of 
the  initiative. 


THEORETICAL    OBJECTIONS    TO  THE  DIRECT  POPULAR 

INITIATIVE 

Opponents  of  the  initiative  assert,  nevertheless,  that  certain 
characteristic  differences  are  to  be  expected  between  measures 
originating  outside  of  and  not  approved  by  the  legislatures  and 
those  for  which  legislative  approval  is  secured,  and  that  if  those 
differences  are  not  yet  clearly  reflected  in  the  election  returns,  it 
is  because  the  initiative  has  not  yet  been  in  operation  long  enough 
for  its  full  effects  to  become  apparent.  Ultimately,  the  less 
satisfactory  operation  of  laws  enacted  by  the  people  under  the  ini- 
tiative will  become  apparent,  it  is  urged,  and  the  causes  will  be 
found  to  lie  in  the  nature  of  the  measures.  In  the  first  place, 
measures  submitted  to  the  electorate  in  accordance  with  the  pro- 
cedure of  the  initiative  are  devised  and  put  forth  by  persons  not 
acting  in  any  official  representative  capacity  and  not  responsible 
to  anybody  but  themselves.  The  members  of  the  legislature 
are  chosen  to  provide  for  the  common  interests  and  promote  the 
general  welfare  of  the  whole  people,  and  have  to  deal  with  many 
measures,  knowing  that  no  two  will  be  approved  by  precisely  the 
same  body  of  voters.  The  initiators  of  a  measure  to  be  submitted 
directly  to  the  electorate  are  self-chosen,  and  need  consider  only 
the  interests  of  a  majority  of  those  whom  they  expect  to  vote 
thereon.  If  they  have  no  ambition  to  hold  public  office,  they  may 
utterly  disregard  the  interests  and  beliefs  of  those  whom  they  ex- 
pect to  vote  against  their  measure.  Therefore,  it  is  to  be  feared 
that  measures  submitted  under  the  initiative  will  tend  to  show 
less  consideration  for  the  rights  of  minorities  than  measures 


DIRECT  LEGISLATION  BY  THE  ELECTORATES      433 

enacted  by  representative  legislators.  But  without  fair  con- 
sideration for  the  rights  of  minorities,  the  peaceful  operation  of 
democratic  institutions  is  impossible.  In  short,  under  such  con- 
ditions the  initiative,  far  from  affording  a  beneficial  educational 
discipline,  would  exercise,  its  opponents  say,  a  profoundly 
demoralizing  influence  on  the  public  mind. 

Secondly,  it  is  asserted  by  the  opponents  of  the  initiative  that 
initiated  measures,  even  if  unexceptionable  in  principle,  are  more 
likely  than  legislative  measures  to  be  offiective  in  detail.  A  legis- 
lative body  is  bound  by  rules  of  procedure  intended  to  secure 
freedom  of  debate  and  adequate  publicity  for  the  reasons  of  its 
acts,  as  well  as  for  the  acts  themselves.  Its  proceedings  are  in- 
tended to  be  deliberate,  and  to  afford  ample  opportunity  for  the 
revision  of  immature  proposals  and  for  the  amendment  of  those 
that  are  imperfect.  The  initiators  of  a  measure  to  be  submitted 
directly  to  the  voters  are  bound  also  by  rules  of  procedure,  but 
these  rules  impose  no  restraint  on  secret  deliberations  and 
ordinarily  afford  no  convenient  opportunity  for  the  revision  of 
immature  or  for  the  amendment  of  imperfect  proposals.  Once  a 
measure  has  been  initiated,  it  must  be  accepted  or  rejected  by 
the  voters  as  it  stands.  Upon  the  electorate,  therefore,  there  is 
more  likely  to  be  thrown  under  the  initiative  than  under  the 
referendum  the  difficult  task  of  balancing  an  end  that  is  good 
against  a  means  that  is  doubtful,  or  of  weighing  the  advantages  of 
immediate  action  against  those  of  acting  more  slowly  with  the 
aid  of  probably  riper  wisdom.  In  short,  in  so  far  as  measures 
not  approved  by  legislative  bodies  may  be  expected  to  differ  from 
those  which  are  so  approved,  they  should  be  less  rather  than 
more  perfect,  it  is  argued,  and  the  initiative  therefore  should 
tend  to  impair  rather  than  improve  the  quality  of  legislation. 

The  first  of  these  theoretical  objections  to  the  initiative^may  be 
partially  tested  by  a  further  examination  of  the  measures  hitherto 
submitted  to  the  electorates  by  means  of  the  initiative.  The 
following  are  the  main  classes  of  legislation  in  connection  with 
which  the  rights  of  minorities  seem  most  likely  to  be  placed  in 
jeopardy  —  taxation,  the  regulation  of  corporations,  especially 
of  public  service  corporations,  the  regulation  of  conditions  of 
industrial  employment,  the  regulation  of  social  conditions  involv- 
ing vested  business  interests,  as  in  the  case  of  the  liquor  traffic, 
a? 


434       STATE  GOVERNMENT  IN  UNITED  STATES 

and  legislation  touching  special  racial  or  religious  interests.  The 
single  tax  is  the  most  radical  proposal  in  the  field  of  taxation  that 
has  been  brought  before  the  electorates  by  means  of  the  initia- 
tive. In  several  states  single  tax  measures  of  various  sorts  have 
been  brought  to  a  vote,  and  have  been  defeated  in  every  case  by 
majorities  varying  from  nearly  two  to  one  to  more  than  five  to 
one.  In  general  the  voters  have  shown  themselves  extremely 
cautious  in  adopting  changes  in  their  system  of  taxation,  whether 
proposed  by  initiative  or  otherwise.1  Measures  relating  to  the 
regulation  of  public  utilities  have  been  brought  before  the  voters 
in  most  states  in  which  the  initiative  has  been  put  to  any  con- 
siderable use,  but  not  all  the  measures  so  submitted  have  been 
adopted,  and  no  measures  have  been  adopted  by  means  of  the 
initiative  for  which  there  was  not  precedent  in  the  legislation 
adopted  by  other  state  legislatures.  The  same  is  true  of  labor 
legislation.  No  laws  have  been  adopted  by  means  of  the  initia- 
tive for  which  precedent  cannot  be  found  in  the  enactments  of 
the  state  legislatures,  nor  do  the  voters  adopt  all  the  labor  laws 
submitted  to  them.  Thus,  the  eight-hour  day  for  women  when 
submitted  by  initiative  in  Oregon  in  1914  was  rejected,  although 
it  had  been  previously  (1912)  adopted  by  the  legislature  of  Cali- 
fornia. With  respect  to  liquor  laws  the  situation  is  the  same. 
In  1914,  for  example,  prohibition  was  submitted  in  five  and 
adopted  in  four  western  states.  In  the  fifth  (California),  where 
the  measure  submitted  to  the  people  contained  some  novel  and 
comparatively  oppressive  provisions,  the  voters,  though  appar- 
ently friendly  to  prohibition,  rejected  the  proposed  measure. 
Among  the  209  measures  that  have  been  submitted  by  means  of 
the  initiative,  down  to  the  close  of  1914,  there  has  been  no  measure 
which  has  raised  a  religious  issue  of  any  kind.  The  principal 
measures  which  have  raised  racial  issues  hi  the  states  possessing 
the  initiative  have  been  submitted  by  the  legislatures,  and  they 
have  been  directed  against  aliens.  Experience  in  the  "direct 
legislation"  states  indicates,  so  far  as  experience  can  yet  indicate 
anything,  that  racial  and  religious  questions  will  not  be  raised  by 
means  of  the  initiative,  except  under  such  circumstances  as  would 
probably  cause  them  to  be  raised  by  the  legislatures,  if  there  were 
no  procedure  for  direct  legislation. 

1  See  especially,  Oregon  election  returns,  1912,  1914. 


DIRECT  LEGISLATION  BY  THE  ELECTORATES      435 

There  is  as  yet  no  convincing  evidence  that  the  initiative  has1 
tended  to  demoralize  the  electorates  by  exposing  casual  majorities  < 
of  voters  to  the  temptation  of  abusing  the  rights  of  helpless j 
minorities  under  the  lead  of  irresponsible  and  reckless  agitators.* 
Either  there  have  been  legislative  precedents  for  the  radical 
measures  submitted  by  means  of  the  initiative,  or  they  have  been 
rejected  at  the  polls.  The  best  examples  of  the  latter  have  been 
the  single  tax  measures  and  those  proposed  by  the  Oregon  re- 
formers for  the  purpose  of  making  over  the  constitution  of  that 
state.  So  far  as  proposals  for  radical  reforms  go,  the  chief  effect 
of  the  initiative  has  been  to  secure  for  their  proponents  an  earlier 
and  wider  hearing  than  would  otherwise  have  been  the  case. 
Presumably  this  means  that  those  proposals  which  are  sound  have 
a  better  prospect  of  speedy  adoption  by  the  legislature  than  if  the 
initiative  did  not  exist.  Submission  to  the  electorate  by  means 
of  the  initiative  serves  the  double  purpose  of  affording  some  bene- 
ficial educational  discipline  to  the  voters,  and  of  revealing  to  the 
legislatures  more  clearly  than  can  be  done  in  any  other  way  the 
state  of  the  public  mind.  Where  the  result  of  the  voting  upon  a 
measure  shows  a  demand  for  action,  even  if  the  electorate  itself 
refuses  to  accept  the  particular  measure  submitted  to  it,  a  wise 
legislature  will  act  accordingly.  The  submission  of  so-called 
"blue  sky"  laws  and  their  rejection  by  the  electorates  of  three 
western  states  in  1912  and  1914  showed,  first,  that  there  was  a 
public  demand  for  the  more  effective  protection  of  investors 
against  fraudulent  securities,  and,  secondly,  that  the  voters 
were  reluctant  to  approve  legislation  on  the  subject  without 
further  consideration.  In  one  of  the  same  states  a  "blue  sky" 
law  enacted  by  the  legislature  and  submitted  to  the  voters  by 
means  of  the  optional  referendum  was  approved  at  the  same  time 
that  an  initiated  measure  was  rejected.  To  secure  the  informa- 
tion concerning  the  state  of  the  public  mind  afforded  by  the  sub- 
mission of  these  measures,  the  votes  were  well  worth  taking. 
Nor  could  the  consideration  of  the  measures  have  failed  to  be 
instructive  to  the  voters.  It  is  doubtless  true  that  the  full 
effects  of  direct  legislation  by  the  voters  are  not  yet  apparent, 
but  the  fears  of  those  who  assert  that  the  initiative  will  exert 
a  bad  influence  upon  the  electorates  do  not  seem  likely  to  be 
verified. 


436       STATE  GOVERNMENT  IN  UNITED  STATES 

The  second  of  the  theoretical  objections  to  the  initiative  may 
be  partially  tested  in  the  same  way  as  the  first.  There  are  many 
examples  of  initiated  measures  which  raise  for  the  consideration 
•of  the  voters  not  only  a  main  issue,  consisting  of  some  general 
principle  of  public  policy,  but  also  subordinate  issues,  arising 
out  of  the  means  proposed  to  give  effect  to  the  general  principle 
of  the  measure.  Now,  the  voters  cannot  decide  at  a  single  ballot- 
ing on  a  given  measure  more  than  one  of  the  issues  that  may  be 
involved  in  it.  Either  they  will  lose  sight  of  the  general  principle 
because  of  the  superior  importance  attached  to  subordinate 
issues,  or  they  will  shut  their  eyes  to  defects  of  detail  because  of 
the  engrossing  interest  of  the  general  principle.  For  example, 
if  a  proposed  law  to  prohibit  the  sale  of  intoxicating  liquors  should 
incidentally  attempt  to  prohibit  the  growing  of  grapes  or  hops, 
grape  and  hop  growers  as  a  class  would  presumably  take  most 
interest  hi  the  features  of  the  measure  that  concerned  them 
most  directly.  A  legislative  system  which  does  not  permit  the 
offering  of  amendments  is  bound  to  be  inferior  to  one  which  does, 
so  far  as  all  but  the  simplest  issues  are  concerned.  Direct  legis- 
lation by  the  voters,  regarded  solely  as  an  educational  discipline, 
may  be  more  effective  than  legislation  by  representatives,  but 
regarded  from  any  other  point  of  view,  its  utility  will  depend  upon 
the  nature  of  the  issues  involved  in  a  given  measure.  A  bill  to 
abolish  capital  punishment  may  be  effectively  disposed  of  by  the 
same  voters,  who  find  themselves  at  a  loss  how  to  vote  on  a  meas- 
ure to  establish  a  public  service  commission  and  define  its  powers. 
Even  if  a  majority  of  the  voters  are  sure  that  they  want  more 
adequate  regulation  of  the  rates  and  service  of  public  utilities, 
they  may  not  be  sure  that  a  commission  is  the  best  means  for  se- 
curing that  end,  or  that  a  commission  of  the  particular  sort,  and 
armed  with  the  particular  powers,  proposed  in  the  measure  sub- 
mitted to  them,  is  the  kind  of  commission  best  fitted  to  carry 
out  their  purposes.  Still  less  are  the  voters  capable  of  voting 
intelligently  on  proposals  to  fix  rates  and  conditions  of  service 
directly  by  law.  The  actual  fixing  of  rates  that  will  be  just  to 
all  parties  is  dependent  upon  acquaintance  with  matters  of  fact 
about  which  it  is  unreasonable  to  expect  many  voters  to  be  ade- 
quately informed. 

It  is  also  unreasonable  to  expect  that  those  who  prepare  meas- 


DIRECT  LEGISLATION  BY  THE  ELECTORATES      437 

ures  for  submission  to  the  voters  will  always  be  actuated  by  a  de- 
sire to  assist  the  voters  to  make  their  decision  wisely.  For 
example,  in  Colorado  in  1914  a  measure  was  submitted  to  the 
voters  permitting  juries  to  return  verdicts  by  a  three-fourths 
vote  in  civil  cases,  and  also  permitting  women  to  serve  on  juries. 
As  women  vote  in  Colorado,  this  manner  of  putting  the  question 
may  have  seemed  to  its  sponsors  a  good  joke  on  the  opponents 
of  any  departure  from  the  established  principle  that  the  verdicts 
of  juries  shall  be  unanimous.  The  "joke,"  however,  was  too 
apparent,  and  the  measure  was  rejected.  But  less  conspicuous 
"jokers"  may  be  deliberately  inserted  in  lengthy  technical  bills, 
as  when  the  Oregon  single  taxers  initiated  a  measure  to  provide 
for  the  county  regulation  of  local  taxation  and  to  abolish  the  poll 
tax.1  Doubtless  many  of  the  devices  for  beguiling  or  deceiving 
members  of  legislative  bodies,  that  have  been  employed  by 
special  interests  to  gain  their  private  ends,  will  also  be  employed 
for  the  same  purpose  in  connection  with  direct  legislation  by  the 
people,  though  with  less  likelihood  of  success. 

IMPROVEMENT  OF   PROCEDURE   FOR  DIRECT  LEGISLATION 

In  several  of  the  states  in  which  it  has  been  proposed  to  estab- 
lish the  initiative,  attempts  have  been  made  to  improve  the  pro- 
cedure for  direct  legislation.  In  California,  the  amendment 
adopted  in  1911,  by  which  the  initiative  was  established,  provided 
that  measures  might  be  submitted  directly  to  the  electorate  on 
petition  of  8  per  cent  of  the  voters,  or  that  they  might  be  sub- 
mitted first  to  the  legislature  on  petition  of  5  per  cent  of  the 
voters.  If  the  legislature  should  fail  to  enact  the  measure  as  pro- 
posed by  the  petitioners,  it  should  be  submitted  to  the  electorate, 
but  not  otherwise.  This  plan  was  intended  to  prevent  the  need- 
less submission  of  measures,  but  afforded  no  means  by  which  an 
initiated  measure,  if  amended  in  the  legislature  with  the  approval 
of  its  initiators,  could  be  enacted  without  submission  to  the  elec- 
torate. Even  if  convinced  that  the  legislature  had  improved 
their  measure,  the  initiators  would,  nevertheless,  have  no  re- 
course but  to  let  their  original  draft  be  submitted  to  the  electo- 

1  This  measure  was  adopted  by  the  voters  in  1910,  but  two  years  later  they  re- 
pealed all  of  it  except  the  part  abolishing  the  poll  tax. 


438       STATE  GOVERNMENT  IN  UNITED  STATES 

rate  and  to  urge  the  voters  to  reject  it  and  accept  the  perfected 
bill  referred  as  an  alternative  by  the  legislature.  In  Wisconsin, 
by  an  amendment  first  proposed  in  1911, 1  it  was  provided  that  no 
measure  should  be  submitted  to  the  electorate  unless  it  had  been 
previously  submitted  to  the  legislature.  If  those  desiring  the 
enactment  of  a  proposed  measure  could  not  induce  the  legislature 
to  accept  it,  either  in  its  original  form  or  in  any  amended  form 
that  would  be  satisfactory  to  them,  they  could  secure  its  sub- 
mission to  the  electorate,  either  in  its  original  form  or  with  any 
proposed  amendments.  The  procedure  for  the  submission  of  a 
measure  to  the  electorate  was  to  be  substantially  the  same, 
whether  a  measure  was  or  was  not  approved  by  the  legislature. 
In  other  words,  no  distinction  was  made  between  the  procedure 
for  the  initiative  and  that  for  the  optional  referendum,  except 
that  the  former  should  apply  to  measures  which  the  legislature 
should  not  and  the  latter  to  measures  which  it  should  approve. 
Such  a  scheme  might  be  expected  to  prevent  the  submission  of 
measures  to  the  electorate,  whenever  action  could  be  secured  from 
the  legislature,  and  where  no  satisfactory  action  from  the  legis- 
lature could  be  secured,  such  a  scheme  might  be  expected  to  in- 
sure the  submission  of  a  measure  in  its  most  improved  form. 
Unfortunately,  the  Wisconsin  scheme  was  rejected  by  the  voters, 
and  the  opportunity  to  put  these  expectations  to  the  test  of 
experience  was  deferred. 

There  has  been  a  marked  tendency  in  the  states  which  have 
most  recently  considered  the  adoption  of  the  initiative  to  provide 
for  as  much  deliberation  as  possible  in  the  procedure  for  direct 
legislation  by  the  voters.2  A  plan  proposed  in  Massachusetts 3 
provides  that  only  a  part  of  the  signatures  required  for  submitting 
a  measure  to  the  electorate  need  be  secured  in  the  first  stage  of 
the  procedure,  the  rest  to  be  secured  after  tHe  adjournment  of 
the  legislature  in  case  that  body  fails  to  take  action  satisfactory 
to  the  original  initiators.  These  persons  are  entitled  to  choose 
a  committee  to  represent  them,  and  the  committee  is  authorized 

1  Endorsed  by  the  legislature  in  1913,  but  rejected  by  the  voters  in  1914. 

2  See  the  Minnesota  amendment,  rejected  in  1914,  and  the  Iowa  amendment, 
to  be  submitted  in  1916,  in  the  American  Year  Book  for  1913,  pp.  76-77. 

3  See  L.   J.   Johnson,    The  Initiative  and  Referendum,   an   Effective  Ally  of 
Representative  Government,  gth  ed. 


DIRECT  LEGISLATION  BY  THE  ELECTORATES      439 

to  consider  and  approve  any  amendments  that  may  be  proposed 
in  the  legislature.  If  by  this  means  the  bill  may  be  so  modified 
as  to  become  acceptable  to  the  legislature  without  becoming  un- 
acceptable to  the  committee,  further  proceedings  under  the  origi- 
nal petition  may  be  discontinued.  Such  a  plan  would  seem  cal- 
culated to  exert  the  maximum  of  pressure  upon  the  legislature 
with  the  minimum  of  effort  on  the  part  of  the  electorate  as  a 
whole,  and  at  the  same  time  to  preserve  all  the  advantages  of  the 
Wisconsin  plan  with  respect  to  the  incorporation  of  perfecting 
amendments  in  measures  actually  submitted  to  the  voters. 

Yet  when  all  is  done  that  has  yet  been  proposed,  the  initiative 
will  remain  a  cumbersome  piece  of  legislative  machinery.  Ini- 
tiated bills  must  still  be  accepted  or  rejected  by  the  voters  in  the 
exact  form/in  which  they  are  submitted.  The  electorate  cannot 
revise  and  amend,  like  a  law-making  body  which  physically  meets, 
and  it  can  recommit  a  measure  only  by  defeating  it.  In  such  an 
event,  there  can  never  be  any  certainty  as  to  the  grounds  of  the 
voters'  objections,  whether  they  approve  the  measure  in  principle 
and  condemn  the  means  employed  to  give  effect  thereto,  or 
whether  they  condemn  it  in  principle  and  in  detail  alike.  It  is  as 
if  an  ordinary  legislature  had  no  option  but  to  give  an  unqualified 
yes  or  no  to  every  measure  laid  before  it,  as  a  jury  can  bring  in  no 
verdict  but  one  of  guilty  or  not  guilty.  As  a  means  of  improving 
the  technical  character  of  state  legislation  the  initiative  holds 
out  little  promise.  The  genius  that  would  be  required  to  perfect 
it,  if  devoted  to  the  further  improvement  of  methods  of  law- 
making  in  the  state  legislatures,  should  bring  a  much  greater 
return. 

The  conditions  under  which  the  initiative  operates  to  best 
advantage  are  the  same  as  those  under  which  the  optional  refer- 
endum operates  to  best  advantage.  The  number  of  measures 
submitted  at  the  same  time  must  not  be  too  great,  and  the  na- 
ture of  the  measures  must  not  be  too  technical  or  too  remote  from 
the  experience  of  the  voters.  Not  a  few  measures  have  been  sub- 
mitted to  the  voters  by  means  of  the  initiative  which  have  con- 
spicuously failed  to  arouse  general  public  interest.  Among  these 
have  been  a  number  of  measures  relating  to  purely  local  affairs, 
or  to  the  general  forms  of  local  government  when  only  special 
localities  were  really  concerned.  Some  measures,  indeed,  of  gen- 


440       STATE  GOVERNMENT  IN  UNITED  STATES 

uine  public  concern  have  been  voted  on  by  a  surprisingly  small 
number  of  persons.  For  example,  in  Colorado  in  1912  measures 
were  initiated  to  provide  for  trial  by  jury  in  cases  of  contempt  of 
court  and  to  place  all  appointed  public  officers  under  civil  service 
rules.  The  former  was  rejected  and  the  latter  was  adopted,  only 
28  per  cent  of  the  voters  who  attended  the  polls  voting  thereon. 
That  was  the  smallest  interest  ever  shown  in  initiated  measures, 
yet  the  measures  were  not  unimportant.  In  general  there  seem 
to  be  proportionately  no  more  measures  of  trivial  importance 
brought  before  the  voters  by  means  of  the  initiative  than  by 
means  of  the  optional  referendum.  But  the  number  of  initiated 
measures  has  been  excessive  in  several  of  the  direct-legislation 
states,  and  measures  of  an  excessively  technical  or  abstract  char- 
acter have  been  initiated  in  most  of  them.  The  Colorado 
measures  noted  above  afford  excellent  illustrations  of  this.  There 
were  too  many  measures  on  the  ballot  in  that  state  in  1912,  the 
provisions  for  informing  the  voters  about  them  were  inadequate, 
and  the  particular  measures  noted  above  were  technical  in  char- 
acter and  related  to  matters  outside  the  experience  of  the 
mass  of  the  voters. 

The  states  which  have  introduced  the  official  bulletin  as  a 
means  of  placing  before  the  electorate  the  texts  of  referred 
measures,  together  with  arguments  thereon,  have  invariably 
made  similar  provision  for  publicity  in  connection  with  the  use 
of  the  initiative.  Thus  one  pamphlet  contains  all  the  matter 
relating  to  measures  to  be  voted  on  by  the  electorate,  regardless 
of  the  origin  of  the  measures.  In  general  what  has  already  been 
noted  concerning  the  value  of  the  official  bulletin  as  a  means  of 
publicity  in  connection  with  the  referendum  applies  also  to  its 
use  in  connection  with  the  initiative.  The  advocates  and  oppo- 
nents of  initiated  measures,  however,  publish  arguments  in  the 
official  bulletins,  the  use  of  which  for  purposes  of  discussion  is 
optional,  much  more  freely  than  the  advocates  and  opponents 
of  referred  measures.  In  no  state  does  the  available  evidence 
indicate  that  the  publication  of  arguments  has  any  decisive  in- 
fluence upon  the  result  of  the  vote.  The  arguments  themselves 
vary  widely  in  forensic  power  but  are  usually  unexceptionable 
in  tone  and  reveal  a  decent  respect  for  the  character  of  those  to 
whom  they  are  addressed.  If  it  were  certain  that  they  were  read 


DIRECT  LEGISLATION  BY  THE  ELECTORATES      441 

by  all  the  voters,  it  would  be  possible  to  bestow  high  praise  upon 
the  educational  value  of  direct  action  by  the  electorate.  The 
election  returns  demonstrate,  however,  that  the  direct  action 
of  the  electorate  upon  measures  is  an  educational  discipline  of 
which  a  considerable  minority  of  the  voters  do  not  as  yet  take 
advantage.  Such  voluntary  disfranchisement  of  ignorant  and 
indifferent  voters,  on  the  other  hand,  so  far  as  voting  upon 
measures  is  concerned,  doubtless  improves  the  operation  of  the 
initiative  as  an  instrument  of  legislation. 

Regarded  as  an  instrument  of  legislation,  however,  the  initia- 
tive is  of  limited  value.  It  is  not  reasonable  to  expect  that  the 
electorate  can  enact  directly  more  than  a  small  fraction  of  the 
total  mass  of  legislation  demanded  by  the  people  of  the  states. 
In  the  main  the  people  must  continue  to  rely  upon  their  less  imme- 
diate representatives,  the  members  of  the  legislatures.  It  is  not 
reasonable  to  expect  that  the  electorate  can  deal  satisfactorily 
with  any  but  the  simplest  issues,  except  temporarily  until  the 
legislature  can  be  incited  to  action.  Finally  there  are  some  mat- 
ters over  which  the  electorate  should  not  be  permitted  to  exer- 
cise an  independent  authority  at  all. 

LIMITATION   OF   LEGISLATIVE    POWERS    OF   ELECTORATES 

In  several  states  which  have  adopted  the  initiative,  the  power 
of  the  electorate  has  been  restricted  to  the  enactment  of  statutes. 
The  power  to  adopt  constitutional  amendments  without  the 
previous  approval  of  some  other  legislative  body  has  been  denied.1 
The  objection  to  the  constitutional  initiative  seems  to  be  based 
upon  the  fear  that  the  electorate  cannot  be  trusted  with  direct 
legislative  power  and  that  the  consequences  of  its  abuse  will  be 
more  serious  in  connection  with  constitutional  amendments  than 
in  connection  with  ordinary  legislation.  A  facile  reply  to  this 
objection  is  that  the  nature  of  a  measure  under  the  conditions  that 
exist  in  most  states  has  no  necessary  connection  with  its  status 
as  constitutional  or  statutory,  and  that  a  discrimination  against 
the  use  of  the  initiative  for  the  adoption  of  such  measures  as 
happen  to  arise  in  the  form  of  constitutional  amendments  is 

1  South  Dakota,  Utah,  Montana,  Maine,  Idaho,  Washington. 


442       STATE  GOVERNMENT  IN  UNITED  STATES 

therefore  not  justified.  This  reply,  however,  does  not  wholly 
meet  the  objection.  It  can  be  seen  by  inspection  of  the  election 
returns  that  most  constitutional  amendments  are  no  less  suited 
by  nature  for  consideration  and  enactment  directly  by  the  elec- 
torate than  ordinary  legislation.  There  is  one  class  of  constitu- 
tional amendments,  however,  of  which  this  is  not  true,  namely, 
those  which  are  intended  to  define  or  enlarge  the  powers  of  the 
electorate  itself.  It  is  natural  for  all  persons,  voters  as  well  as 
those  in  more  conspicuous  places  of  authority,  to  strive  for  greater 
power.  The  electorate,  if  permitted  to  define  its  own  powers, 
cannot  be  expected  to  resist  the  temptation  unduly  to  enlarge 
them.  The  dangers  that  may  result  from  the  lack  of  any 
restrictions  upon  the  power  of  electoral  initiative  in  an  American 
state  are  greatly  diminished  by  the  power  possessed  by  the 
federal  courts  to  veto  state  legislation  in  conflict  with  the  Federal 
Constitution.  The  state  electorates  cannot  destroy  the  republi- 
can character  of  established  institutions,  nor  deny  to  any  person 
the  benefit  of  due  process  of  law.  The  difficulties,  however, 
that  may  result  from  the  unrestricted  initiative  are  not  inconsider- 
able. For  example,  in  Arizona  a  constitutional  amendment  was 
proposed  by  means  of  the  initiative  in  1914  for  the  purpose  of 
depriving  the  legislature  of  the  power  to  amend  or  repeal  any 
statute  adopted  by  the  electorate.  The  needlessness  of  this 
proposal  and  the  inconveniences  that  might  be  caused  by  it 
were  pointed  out  in  an  able  argument  published  in  the  official 
bulletin,  but  it  was  nevertheless  adopted.  The  action  of  the  elec- 
torate in  this  instance  was  not  rational ;  it  was  instinctive,  and 
action  in  such  cases  is  more  likely  to  be  instinctive  than  rational. 
The  electorate  is  not  the  people,  and  under  our  system  of  gov- 
ernment it  is  just  as  improper  for  the  electorate  directly  to  define 
its  own  powers  as  for  the  legislature  or  the  courts  to  define  their 
own  powers.  The  right  of  the  legislature  or  courts  to  define  their 
own  powers  is  checked  and  balanced  by  the  right  of  the  other 
organs  of  government  to  do  likewise.  The  same  should  be  the 
rule  for  the  electorate.  The  legal  responsibility  of  the  other  or- 
gans to  the  electorate  insures  that  the  will  of  the  voters,  if  well 
considered,  will  ultimately  prevail. 

There  are  some  other  limitations  that  should  be  imposed  upon 
the  direct  popular  initiative.    When  the  electorate  exercises  the 


DIRECT  LEGISLATION  BY  THE  ELECTORATES      443 

power  of  initiative,  it  acts  as  a  legislative  body,  and  is  subject 
to  many  of  the  temptations  that  surround  other  legislative  bodies. 
Experience  has  shown  what  these  temptations  are,  and,  to  guard 
against  them,  many  constitutional  limitations  have  been  imposed 
upon  the  ordinary  state  legislatures.  In  so  far  as  these  limita- 
tions regulate  the  procedure  of  the  legislatures,  they  are  mostly 
inapplicable  to  the  electorates,  —  a  fact  which  renders  it  im- 
possible that  the  electorate  can  ever  be  a  satisfactory  independ- 
ent agency  for  the  enactment  of  the  greater  portion  of  state  legis- 
lation. In  so  far  as  these  limitations,  however,  relate  to  the 
powers  of  the  state  legislatures,  they  are  applicable  to  the  elec- 
torates. In  Wisconsin,  the  proposed  plan  for  direct  legislation 
by  the  electorate,  rejected  by  the  voters  in  1914,  provided  that  the 
constitutional  limitations  upon  the  powers  of  the  ordinary  legis- 
lature should  be  imposed  also  upon  the  electorate,  when  acting 
as  a  legislative  body.  The  Wisconsin  plan  showed  a  prudent 
recognition  of  the  lessons  of  experience  with  American  legislative 
bodies,  but  it  was  not  altogether  above  criticism.  The  effect  of 
constitutional  limitations  upon  the  powers  of  a  state  legislature, 
when  properly  enforced  by  executive  and  judiciary,  is  to  prevent 
the  enactment  of  the  prohibited  measures  without  the  express  ap- 
proval of  the  electorate.  It  is  not  certain,  however,  that  those 
kinds  of  measures  which  a  legislature  cannot  be  trusted  to  enact 
without  the  express  approval  of  the  electorate  are  identical  with 
those  which  an  electorate  cannot  be  trusted  to  enact  without  the 
approval  of  the  legislature.  Nor,  as  has  been  pointed  out,  is  it 
even  certain  that  the  existing  limitations  upon  the  powers  of  the 
legislatures  are  those  which  are  most  necessary  and  appropriate 
for  legislative  bodies.  But  in  a  general  way  it  may  be  said  that 
at  the  least  such  constitutional  limitations  should  be  imposed 
upon  the  electorates  as  will  effectually  prevent  them  from  exer- 
cising executive  or  judicial  powers  under  the  guise  of  popular 
law-making. 

During  the  twelve  years  that  have  elapsed  since  the  initiative 
was  first  employed  for  the  enactment  of  legislation  directly  by 
the  voters,  many  popular  measures  have  been  adopted  by  the 
state  electorates,  which  certainly  would  not  have  been  adopted 
so  soon,  if  the  legislatures  in  those  states  had  possessed  a 
monopoly  of  the  law-making  power.  The  most  notable  illustra- 


444       STATE  GOVERNMENT  IN  UNITED  STATES 

tion  of  the  use  of  the  initiative  is  afforded  by  the  experience  of 
Oregon.  Among  the  measures  that  have  been  adopted  in  that 
state  by  means  of  the  initiative  are  the  following :  the  direct 
primary  law,  a  local  option  liquor  law,  later  state-wide  prohibi- 
tion, municipal  home-rule,  a  railroad  anti-pass  law,  several 
special  corporation  tax  laws,  the  state-wide  recall,  a  stringent 
corrupt  practices  act,  the  so-called  Oregon  plan  for  the  direct 
election  of  United  States  senators  (now  superseded  by  the 
seventeenth  amendment  to  the  Federal  Constitution),  an  em- 
ployers' liability  act,  woman  suffrage,  extension  of  the  public 
debt  limit  for  road  construction,  the  eight-hour  day  on  public 
works,  a  public  utilities  commission  law,  prohibition  of  prison 
contract  labor,  and  abolition  of  capital  punishment.  Neverthe- 
less, regarded  primarily  as  an  instrument  of  government  rather 
than  as  an  educational  discipline,  the  value  of  the  initiative  has 
consisted  hitherto  and  must  continue  to  consist  principally  in  its 
efficacy  as  a  mode  of  expressing  public  opinion.  Modes  of  ex- 
pressing the  opinion  of  the  voters  which  are  advisory  only  cannot 
be  as  effective  as  those  which  are  mandatory,  and  eventually  will 
be  treated  by  them  with  comparative  indifference.  The  opera- 
tion of  the  Illinois  public  opinion  law  of  1902  has  demonstrated 
this.  Under  the  initiative,  the  voters'  knowledge  that  their 
opinions  will  have  a  certain  effect  brings  out  a  fuller  and  more 
deliberate  expression  of  opinion  than  under  any  other  system. 
Whether  initiated  measures  submitted  to  the  voters  are  adopted 
or  rejected,  the  value  of  the  vote  as  an  expression  of  opinion  is 
equally  great.  The  best  effects  of  the  popular  initiative  should 
be  found,  in  the  long  run,  not  in  the  legislation  placed  by  its  use 
directly  upon  the  statute  books,  but  in  the  improvement  of  the 
legislation  placed  there  by  the  legislatures. 


PART   IV 

CONCLUSION 


CHAPTER  XIV 

THE  FURTHER  REFORM  OF  STATE  GOVERNMENT 

Two  conclusions  stand  out  clearly  from  the  study  of  state 
government  in  the  United  States.  In  the  first  place,  it  is  evident 
that  the  governments  of  the  states  are  now  very  different  from 
what  they  were  in  the  beginning.  We  are  accustomed  to  look 
back  at  the  institutions  of  the  Fathers  with  veneration  and  awe. 
The  truth  is,  so  far  as  state  government  is  concerned,  that  the 
institutions  originally  established  were  for  the  most  part  very 
imperfect.  The  people  of  all  the  states  began  with  the  same 
fundamental  principles,  popular  sovereignty  and  the  reign  of 
law.  But  there  was  no  agreement  upon  methods  of  reducing 
those  principles  to  practice.  Some  of  the  methods  originally 
employed  were  well  devised  and  have  endured.  The  government 
of  Massachusetts,  the  most  carefully  planned  and  best  balanced 
of  the  original  state  governments,  is  still  carried  on  under  the 
original  constitution.  In  that  state  the  character  of  the  govern- 
ment has  been  much  more  affected  by  the  growth  of  parties  and 
the  development  of  administrative  activities  than  by  the  formal 
amendment  of  the  constitution.  In  most  of  the  original  states, 
however,  the  first  governments  were  not  carefully  planned  and 
have  been  greatly  altered  by  constitutional  changes.  These 
changes  have  been  many  and  various,  but,  as  already  indicated, 
they  may  all  be  classified  under  one  or  the  other  of  two  heads. 
The  changes  falling  under  the  first  head  have  to  do  with  the 
democratization  of  the  forms  of  government.  The  electorates 
have  been  made  broader  and  more  completely  representative  of 
the  people.  Their  control  over  the  other  branches  of  govern- 
ment, legislative,  executive,  and  judicial,  has  been  strengthened. 
The  changes  falling  under  the  second  head  have  to  do  with  the 
redivision  of  powers  between  the  legislative,  executive,  and  ju- 
dicial branches.  The  legislatures,  practically  supreme  in  most 

447 


448       STATE  GOVERNMENT  IN  UNITED  STATES 

of  the  original  states,  have  been  subjected  to  more  effective 
checks,  and  a  better  balance  has  been  established  between  them 
and  the  coordinate  branches.  The  result  is  that  state  govern- 
ment is  now  not  only  very  different,  but  also  on  the  whole  very 
much  better  than  it  was  in  the  beginning. 

The  second  conclusion  to  be  drawn  from  the  study  of  the 
government  of  the  states  is  that  the  process  of  change  by  which 
the  improvement  of  state  government  has  been  accomplished  has 
not  yet  come  to  an  end.  The  state  governments  are  expected  to 
do  a  great  deal  more  for  the  people  than  in  the  beginning,  and 
many  things  no  doubt  are  now  done  much  better.  Nevertheless, 
it  is  generally  believed  that  state  government  is  not  very  efficient 
and  in  some  cases  not  even  decent.  Whilst  much  of  the  dis- 
satisfaction with  the  state  governments  must  be  ascribed  to  the 
imperfections  of  human  nature,  it  is  evident  that  the  forms  of 
government  also  still  remain  imperfect.  The  people  have  be- 
trayed their  dissatisfaction  by  the  continual  discussion  of  fresh 
expedients  for  further  reform.  In  recent  years  some  of  these 
expedients  have  been  adopted,  notably  the  direct  primary,  the 
regulation  of  the  use  of  money  in  elections,  and,  to  a  more  limited 
extent,  direct  legislation  and  the  recall.  But  in  general  public 
opinion  seems  bewildered  by  the  variety  of  expedients  that  are 
offered.  There  is  no  agreement  yet  concerning  the  proper  quali- 
fications for  the  suffrage  or  the  best  methods  of  making  nomina- 
tions and  conducting  elections.  There  is  no  agreement  concern- 
ing the  organization  or  powers  of  the  legislatures,  executives,  and 
judiciary.  There  is  no  agreement  concerning  the  functions  of  the 
electorates  or  the  methods  of  changing  the  state  constitutions. 
It  is  not  surprising,  therefore,  that  the  recent  discussion  of  the 
need  for  further  reform  has  as  yet  been  followed  by  a  dispropor- 
tionately small  amount  of  actual  achievement.  There  is  no 
reason  to  suppose,  however,  that  either  the  popular  dissatisfac- 
tion or  the  discussion  of  expedients  for  further  reform  will  cease, 
while  political  conditions  in  the  states  remain  as  they  are  at 
present.  State  government  in  the  future,  as  in  the  past,  will 
probably  be  very  different  from  what  it  is  now.  If  the  right 
expedients  are  now  adopted,  it  ought  also  to  be  very  much  better. 

The  changes  in  state  government  now  most  frequently  pro- 
posed for  adoption,  like  those  already  adopted,  may  all  be 


THE  FURTHER  REFORM  OF  STATE  GOVERNMENT    449 

classified  under  one  or  the  other  of  two  heads.  First,  there  are 
those  intended  to  broaden  the  electorates  and  give  them  greater 
control  over  the  conduct  of  public  affairs.  Secondly,  there  are 
those  intended  to  impose  further  limitations  upon  the  powers  of 
the  legislatures  and  to  increase  the  authority  and  usefulness  of 
the  executives  and  judiciary.  The  first  class  of  changes,  now 
as  in  the  beginning,  are  advocated  for  the  purpose  of  making  the 
state  governments  more  popular;  the  second,  to  make  them 
more  efficient.  Most  contemporary  plans  for  the  further  reform 
of  state  government,  however,  deal  only  with  special  cases  of 
imperfection.  Specific  remedies  are  suggested  for  specific  evils, 
regardless  of  their  bearing  upon  the  government  of  the  state  in 
other  respects.  The  messages  of  the  governors,  for  example,  in 
recent  years  have  frequently  contained  suggestions  for  changes  in 
the  conduct  of  elections,  as  by  the  adoption  of  better  ballot  laws, 
or  for  changes  in  the  organization  and  procedure  of  the  legisla- 
tures, as  by  the  adoption  of  the  unicameral  system,  or  in  the 
executives,  as  by  the  introduction  of  the  budget  system,  or  in  the 
judiciaries,  as  by  the  reform  of  the  use  of  injunctions  or  of  the 
system  of  trials  of  appeals.  But  plans  for  the  systematic  revi- 
sion of  state  government  as  a  whole  are  comparatively  infrequent. 
When  politicians  or  reformers  do  take  a  broader  view  of  the 
problems  of  state  government,  their  attention  seems  generally 
to  be  directed  either  to  the  further  democratization  of  the  forms 
of  government  in  the  interest  of  greater  popular  control  or  to  the 
further  redivision  of  powers  between  the  legislatures  and  the 
coordinate  branches  in  the  interest  of  greater  efficiency,  but 
rarely  to  both  at  once.  Several  noteworthy  plans  for  the  more 
or  less  general  reform  of  state  government,  however,  have 
recently  been  put  forth. 

I 

THE  COMMISSION  PLAN 

The  most  radical  of  the  various  plans  for  the  further  reform 
of  state  government  is  the  commission  plan.  The  commission 
plan  for  states  is  based  upon  the  commission  plan  for  cities,  the 
principal  features  of  which  are  the  following :  —  (i)  the  concen- 

2G 


450       STATE  GOVERNMENT  IN  UNITED  STATES 

tration  of  all  legislative  and  executive  authority  in  a  single  small 
body,  the  commission,  consisting  usually  of  five  members; 
(2)  the  exercise  of  legislative  powers  by  the  commission  as  a 
whole ;  (3)  the  exercise  of  executive  powers  by  each  commissioner 
over  a  separate  department  of  administration ;  (4)  the  election 
of  the  commissioners  at  large;  and  (5)  the  enforcement  of  re- 
sponsibility to  the  people  and  the  maintenance  of  continuous 
popular  control  over  both  the  legislative  and  the  administrative 
acts  of  the  commission  and  of  each  commissioner  by  means  of 
the  direct  popular  referendum,  initiative,  and  recall.  Consider- 
able variation  in  details  is  to  be  found  among  the  charters  of 
commission-governed  cities,  but  in  general  the  differences  are  of 
minor  importance.  The  terms  for  which  commissioners  are 
elected  range  from  one  to  six  years,  two  and  four  year  terms  being 
the  most  common,  and  are  usually  so  adjusted  that  they  expire 
one  or  two  at  a  time.  In  most  cities  where  the  commission  plan 
has  been  adopted  the  assignment  of  departments  to  the  several 
commissioners  is  made  by  the  commission  itself,  but  in  some 
cities  each  commissioner  is  elected  to  take  charge  of  a  particular 
department,  and  the  commission  as  a  whole  cannot  alter  his 
administrative  duties,  except  by  altering  the  organization  and 
functions  of  the  department,  so  far  as  permitted  by  the  charter. 
In  most  cities  the  commissioners  are  nominated  in  a  non-partisan 
primary  and  elected  without  party  designation  of  any  sort.  In 
some  the  primary  has  been  abolished  and  in  its  place  the  prefer- 
ential ballot  is  employed  at  the  election.  Subordinate  officials 
are  often  protected  by  the  merit  system,  and  partisan  control  of 
patronage  and  partisanship  in  general  are  so  far  as  possible 
eliminated. 

The  commission  plan,  as  applied  in  the  cities,  has  demon- 
strated its  possession  of  many  advantages.1  The  concentration 
of  powers  has  put  an  end  to  the  friction  between  mayors  and 
councils  that  often  occurred  in  cities  governed  in  accordance  with 
the  traditional  plan,  and  has  centralized  responsibility  for  the 
management  of  municipal  affairs.  It  has  facilitated  the  adop- 
tion of  businesslike  methods  in  the  conduct  of  the  public  busi- 
ness and  stimulated  attention  to  economy  and  efficiency.  If  the 
adoption  of  the  commission  plan  has  not  greatly  altered  the  per- 

1  See  W.  B.  Munro,  The  Government  of  American  Cities,  pp.  304-310. 


THE  FURTHER  REFORM  OF  STATE  GOVERNMENT    451 

sonnel  of  municipal  government,  it  has  unquestionably  improved 
the  tone  of  municipal  politics.  On  the  other  hand,  its  limitations 
are  equally  apparent.  It  restricts  the  public  service,  at  least  so 
far  as  holding  political  offices  are  concerned,  much  more  narrowly 
than  the  older  system  of  municipal  government.  It  offers  no 
security  for  an  adequately  representative  government  in  cities 
with  a  large  and  variegated  population.  It  provides  an  adminis- 
tration, which,  unless  it  is  to  be  dangerously  susceptible  to  sinister 
control,  requires  for  the  protection  of  the  public  a  large  measure 
of  publicity  in  all  its  proceedings  and  a  watchful  citizenry.  In 
particular,  the  concentration  of  the  appropriating  and  the  spend- 
ing power  in  the  same  hands  may  lead  the  commissioners  into 
grave  temptations,  unless  they  are  adequately  checked  by  the 
instruments  of  direct  popular  control,  the  referendum,  initia- 
tive, and  recall.  In  the  smaller  cities,  however,  these  limitations 
are  not  seriously  felt.  In  all  kinds  of  cities  the  commission  plan 
promises  a  frame  of  government  which  the  voters  can  readily 
understand,  a  consideration  which  doubtless  has  greatly  aided 
in  promoting  its  rapid  and  widespread  adoption.  As  a  leading 
authority  on  the  government  of  cities  has  well  said,  the  advocates 
of  the  commission  plan  have  "rendered  a  real  service  in  directing 
public  attention  to  the  most  urgent  need  of  the  American  muni- 
cipal system,  —  the  simplification  of  a  machine  which  is  far  too 
complex  for  the  work  that  it  has  to  do.  As  a  protest  against 
the  old  municipal  regime  it  has  been  effective ;  as  a  policy  it  has, 
despite  incidental  shortcomings,  fulfilled  much  of  what  its  spon- 
sors have  claimed  for  it."  l 

The  adoption  of  the  commission  plan  for  cities,  and  the  accom- 
panying marked  improvement  in  the  tone  and  results  of  muni- 
cipal government,  inevitably  led  to  the  suggestion  of  the  com- 
mission plan  for  states.  To  the  advocates  of  the  commission 
plan  it  was  enough  to  point  to  the  conditions  in  commission- 
governed  cities.  To  the  careful  student  of  state  government, 
however,  that  argument  was  inconclusive.  In  the  first  place,  it 
is  evident  that  much  of  the  improvement  in  the  character  of 
municipal  government  that  has  followed  the  rapid  spread  of  the 
commission  plan  has  been  the  result  of  features  commonly  intro- 
duced with  the  commission  plan,  but  not  essential  to  it.  Non- 

1  Munro,  op.  cii.,  p.  319. 


452 

partisan  nominations  and  elections,  the  short  ballot,  the  abolition 
of  petty  local  representation,  the  merit  system  of  appointment 
and  promotion,  wider  and  more  effective  use  of  experts  in  ad- 
ministration, uniform  methods  of  accounting,  improvements  in 
budgetary  practice,  greater  publicity  in  the  conduct  of  official 
business,  and  greater  popular  interest  in  public  affairs:  these 
features  alone  would  have  worked  a  great  improvement  in  the 
government  of  cities.  Secondly,  it  is  evident  that  the  commis- 
sion plan  is  more  suitable  for  the  conduct  of  administration  than 
for  legislative  purposes.  In  municipal  government,  administra- 
tive functions  are  far  more  important  than  legislative,  but  in 
state  government  the  legislative  functions  are  the  more  impor- 
tant. The  people  of  a  city,  especially  of  a  small  city,  may  be 
adequately  represented  for  the  purpose  of  framing  and  adopting 
ordinances  by  a  body  of  five  persons  elected  at  large,  but  law- 
making  for  the  people  of  a  whole  state  requires  a  more  numerous 
representative  body.  The  burden  of  administration  in  a  large 
city,  if  too  heavy  for  five  commissioners,  can  be  lightened  by 
delegating  a  part  of  the  work  to  technical  assistants  or  subordi- 
nates. The  burden  of  legislation  in  a  state,  if  too  heavy  for 
the  commission,  cannot  so  easily  be  delegated.  A  watchful  citi- 
zenry may  exercise  an  effective  control  over  a  municipal  com- 
mission, if  the  city  be  not  too  large  nor  its  affairs  too  compli- 
cated, without  an  excessive  burden  upon  the  ballot  through  the 
use  of  the  referendum,  initiative,  and  recall;  but  in  a  state 
governed  by  the  commission  plan  the  same  effect  could  be  secured 
only  by  a  much  greater  effort  on  the  part  of  the  electorate.  It 
has  already  been  pointed  out  that  there  is  a  point  beyond  which 
increased  direct  action  by  the  voters  will  not  yield  a  correspond- 
ing increase  in  the  effectiveness  of  that  mode  of  governmental 
control.  Finally,  the  commission  plan  is  illogical.  As  Professor 
Munro  says,  "Nearly  all  the  arguments  that  can  be  advanced  in 
favor  of  the  five-headed  executive  can  be  urged  with  greater 
cogency  for  the  policy  of  concentrating  all  final  powers  of  an 
administrative  character  in  the  mayor  alone."  1  Another  able 
critic  of  American  government  puts  it  more  strongly.  "I  do 
not  advocate  the  commission  plan,  either  for  states  or  cities, 
because  it  violates  the  fundamental  principles  of  government 

1  Op.  dt.,  p.  317. 


THE  FURTHER  REFORM  OF  STATE  GOVERNMENT    453 

and  all  other  successful  cooperative  enterprises  in  this :  It 
divides  executive  responsibility  and  power  among  from  three 
to  seven  men.  These  fundamental  principles,  as  I  understand 
them,  are  that  for  legislation  it  is  impossible  to  have  too  many 
minds.  .  .  .  On  the  executive  side  there  must  be  undivided 
responsibility  —  one  mind.  There  can  be  no  danger  in  placing 
too  much  executive  power  with  one  man,  if  he  is  directly  re- 
sponsible to  his  employers,  the  people."  1 

It  is  not  surprising,  therefore,  that,  despite  the  great  popu- 
larity in  recent  years  of  the  commission  plan  for  the  government 
of  cities,  plans  for  the  reform  of  state  government  by  merging  the 
legislature  with  the  governor  and  other  principal  executive  officers 
into  a  single  state  commission,  exercising  both  legislative  and 
executive  powers,  have  not  developed  to  the  point  where  they 
could  command  serious  consideration  or  official  support.  There 
have  been  several  so-called  commission  plans  for  state  govern- 
ment, but  they  have  invariably  lacked  some  of  the  essential 
features  of  the  genuine  commission  plan.  One  of  the  most  widely 
discussed  of  these  was  suggested  by  Governor  Hodges  of  Kansas 
in  1913.  He  proposed  that  the  executive  branch  of  the  state 
government  be  left  as  it  was,  but  that  in  place  of  the  bicameral 
legislature  a  single  "commission"  be  substituted.  This  legisla- 
tive commission  was  to  consist  of  two  members  elected  from  each 
congressional  district  for  comparatively  long  terms.  They  were 
to  give  all  their  time,  if  necessary,  to  the  task  of  law-making, 
and  were  to  receive  much  better  compensation  than  ordinary 
state  legislators.  Governor  Hodges  argued  that  the  members  of 
such  a  legislative  commission  would  be  more  carefully  selected 
than  members  of  an  ordinary  legislature,  that  the  work  would 
attract  a  more  efficient  set  of  men,  and  that  they  would  be  able 
to  perform  their  duties  under  more  favorable  conditions.  His 
proposal,  however,  was  obviously  a  half  measure,  since  it  took 
no  account  of  the  necessity  for  improving  administrative  as  well 
as  legislative  methods,  and,  perhaps  for  that  reason,  it  found 
little  favor  with  the  Kansas  legislature.  Nevertheless,  the  sub- 
stitution of  unicameral  councils  for  separate  common  councils 
and  boards  of  aldermen  has  been  a  change  distinctly  for  the 
better  in  several  large  cities,  which  did  not  venture  to  try  the 

1  "Clear  Ideas  from  Hon.  W.  S.  U'Ren,"  Equity,  vol.  jv,  pp.  163-164. 


454       STATE  GOVERNMENT  IN  UNITED  STATES 

commission  plan,  and  similar  consolidations  in  the  state  legisla- 
tures have  been  recommended  in  recent  years  by  several  govern- 
ors. As  has  been  already  pointed  out,  this  is  a  specific  reform 
for  which  much  can  be  said,  irrespective  of  any  changes  to  be 
made  in  other  departments  of  state  government. 

The  commission  plan  of  government,  it  is  now  clear,  marked 
the  climax  of  a  reaction  against  the  established  American  prac- 
tice of  the  division  of  powers.  The  division  of  powers  was 
carried  to  extreme  lengths  in  the  traditional  form  of  municipal 
government,  and  public  impatience  with  some  of  its  results  was 
justified.  Five  executive  heads  are  certainly  better  than  fifty 
or  than  none  at  all,  which  was  substantially  the  situation  in 
many  city  and  state  governments,  if  unofficial  bosses  be  left  out 
of  view.  But  for  purely  executive  purposes  one  head  is  even 
better  than  five,  whilst  for  the  business  of  law-making  on  any 
considerable  scale  five  commissioners  are  not  enough.  The 
necessity  for  the  complete  abandonment  of  the  principle  of  the 
division  of  powers  has  not  yet  been  demonstrated.  Opinion 
among  reformers  now  tends  to  recognize  that  a  more  rational 
application  of  the  principle  than  under  the  tradition  form  of 
municipal  government  is  what  is  required.  Indeed,  the  impor- 
tance of  a  rational  division  of  powers  was  never  wholly  ignored, 
though  it  was  apparently  denied  by  some  of  the  commission  plan 
advocates.  The  merit  system  of  appointments  and  promotions, 
often  associated  with  the  commission  plan,  was  itself  a  conces- 
sion to  the  principle  of  the  division  of  powers,  and  the  growing 
favor  of  the  so-called  commission-manager  or  Dayton  plan  for 
the  government  of  cities  plainly  indicates  a  turn  in  the  tide  of 
public  sentiment.  Under  this  plan,  the  chief  executive  is  to  be 
chosen  by  a  comparatively  small  representative  council  for  fit- 
ness without  regard  to  politics,  and  to  be  intrusted  with  full 
powers  of  administration.  He  is  in  short,  as  the  name  indicates, 
a  city  manager.  He  has  no  veto  over  ordinances  or  appropria- 
tions passed  by  the  council,  but  is  expected  to  take  the  initiative 
in  the  preparation  of  proposed  ordinances  and  of  the  budget. 
Legislative  power  remains  exclusively  with  the  council,  subject, 
if  desired,  to  the  popular  control  through  the  referendum,  initia- 
tive, and  recall.  Since  the  development  of  this  new  plan  for  the 
division  of  powers  in  the  government  of  cities,  talk  of  the  com- 
mission plan  for  states  has  come  to  an  end. 


THE  FURTHER  REFORM  OF  STATE  GOVERNMENT  455 

II 

THE  SOCIALIST  PLAN 

A  less  radical  plan  for  the  reform  of  state  government  is  that 
proposed  by  the  Socialist  party.  This  plan  seems  originally  to 
have  been  brought  from  Germany  in  the  seventies  by  the  founders 
of  the  old  Socialist-Labor  party.  In  the  form  in  which  it  appears 
in  the  early  platforms  of  that  party  it  closely  resembles  the  plan 
of  political  reorganization  advocated  by  the  German  Socialists 
of  the  same  period,  and  doubtless  reflected  the  experience  and 
hopes  of  Swiss  democracy,  then  the  inspiration  of  revolutionary 
Germans,  rather  than  those  of  America.  In  the  early  platforms, 
for  example,  it  was  proposed  to  abolish  the  presidency  (and  pre- 
sumably also  the  office  of  governor  in  the  states)  and  substitute 
an  executive  commission  or  council,  chosen  by  the  legislature. 
When  in  1888  presidential  electors  were  first  nominated  by  the 
Socialist-Labor  party,  they  were  instructed,  if  successful  at  the 
polls,  to  cast  their  votes  for  "No  President."  1  With  the  lapse 
of  time  socialism  in  the  United  States  has  become  more  Ameri- 
canized, and  the  " immediate  political  demands"  of  the  present 
Socialist  party  say  nothing  about  Swiss  executive  councils.  The 
principal  features  of  the  Socialist  plan  are  now  as  follows: 
(i)  unrestricted  and  equal  suffrage  for  men  and  women ;  (2)  aboli- 
tion of  the  upper  houses  of  the  legislatures  and  election  of  the 
lower  houses  by  some  system  of  proportional  representation ; 
(3)  abolition  of  the  executive  and  judicial  vetoes  and  restriction 
of  the  executive  and  judicial  departments  to  purely  administra- 
tive and  judicial  duties ;  (4)  election  of  all  important  adminis- 
trative and  judicial  officers  directly  by  the  people ;  and  (5)  the 
direct  popular  referendum,  initiative,  and  recall.  Of  these  all 
but  the  fourth  have  been  expressed  or  implied  in  Socialist  plat- 
forms since  the  Socialists  first  entered  American  politics  with  an 
organization  of  their  own. 

Much  of  this  plan  is  the  common  property  of  American  re- 
formers. Manhood  suffrage  had  been  strongly  favored  by  the 
fourteenth  and  fifteenth  amendments,  and  the  grant  of  the  suffrage 
to  women  on  the  same  terms  as  to  men  had  been  begun  in  the 

1  See  Morris  Hillquit,  History  of  Socialism  in  the  United  States  (sth  ed.),  P-  257. 


456       STATE  GOVERNMENT  IN  UNITED  STATES 

West,  before  the  first  platform  of  the  modern  Socialist  movement 
in  America  was  written.  Equal  suffrage  has  now  (1916)  been  en- 
dorsed by  all  political  parties  and  of  course  cannot  be  classed  as 
a  peculiarly  socialistic  reform.  The  proposal  to  consolidate  the 
bicameral  legislatures  into  single-chambered  bodies,  as  has  been 
shown,  goes  back  to  the  beginning  of  the  state  governments,  and 
discussion  of  the  proposal  has  been  recently  revived  without 
reference  to  the  plans  of  the  Socialists.  The  proposal  to  elect 
representatives  by  some  system  of  proportional  representation 
is  scarcely  more  novel,  and  has  been  discussed  in  America  ever 
since  the  publication  shortly  before  the  Civil  War  of  J.  S.  Mill's 
influential  essay  on  Representative  Government.  Various  sys- 
tems have  been  experimented  with,  notably  cumulative  voting, 
adopted  for  the  election  of  members  of  the  lower  house  of  the 
legislature  in  Illinois  in  1870,  and  limited  voting,  employed  in  the 
election  of  delegates  to  the  Pennsylvania  constitutional  conven- 
tion in  1873.  Interest  in  proportional  representation  declined 
in  the  seventies,  but  revived  two  decades  later.  Like  the  con- 
temporary interest  in  the  initiative  and  referendum,  this  revival 
was  probably  inspired  directly  by  the  example  of  Switzerland 
rather  than  by  the  propaganda  of  the  Socialists.  Recent  dis- 
cussion of  proportional  representation  has  been  more  particularly 
concerned  with  its  possible  application  to  municipal  councils. 
The  system  advocated  by  Mill  was  tried  for  the  first  time  in 
1915  in  connection  with  the  election  of  a  representative  council 
under  the  commission-manager  plan  in  Ashtabula,  Ohio.1  Both 
the  executive  and  the  judicial  vetoes  were  opposed  by  early 
American  democrats,  and  both,  particularly  the  latter,  are  still 
opposed  by  many  non-socialist  critics  of  existing  institutions  in 
the  states.  The  direct  popular  election  of  administrative  and 
judicial  officers  was  a  cardinal  principle  of  nineteenth-century 
American  democracy,  and  the  direct  popular  initiative,  referen- 
dum, and  recall  have  been  incorporated  in  the  program  of  all 
twentieth-century  American  democrats. 

The  significance  of  the  Socialist  plan  does  not  lie  in  the  char- 
acter of  its  several  features,  but  in  their  combination  into  a 
general  scheme  of  reform.  Viewed  as  a  whole,  the  plan  resembles 
the  commission  plan  in  its  insistence  upon  the  direct  election  of 

1  See  Proportional  Representation  Quarterly,  3d  series,  no.  37,  Jan.  1916. 


THE  FURTHER  REFORM  OF  STATE  GOVERNMENT    457 

administrators  as  well  as  legislators  and  upon  the  direct  control 
of  their  operations  by  the  electorate.  The  Socialist  plan  also 
resembles  the  commission  plan  in  marking  a  reaction  against  the 
doctrine  of  the  division  of  powers.  But  it  does  not,  like  the 
commission  plan,  propose  to  do  away  altogether  with  the  division 
of  powers  between  coordinate  branches  of  the  government.  The 
Socialists  are  content  to  leave  the  executive  and  judiciary  inde- 
pendent of  the  legislature,  proposing  merely  to  deprive  them  of 
their  political  powers.  In  other  words,  so  far  as  concerns  the 
relations  between  the  different  departments  of  government, 
they  propose  partially  to  restore  the  conditions  which  existed 
during  the  early  period  of  legislative  supremacy.  They  would 
democratize  the  forms  of  government  to  the  utmost  limit  com- 
patible with  the  maintenance  of  representative  institutions,  but 
they  would  make  little  change  in  the  original  division  of  powers. 
The  study  of  contemporary  state  government  clearly  indi- 
cates, however,  that  under  present  conditions  the  people  cannot 
safely  rely  on  direct  action  by  the  electorates  for  all  the  protec- 
tion against  legislative  mistakes  and  misdeeds  now  afforded  by 
the  existing  checks  and  balances.  The  direct  popular  veto,  for 
example,  cannot  do  all  the  work  now  done  by  the  executive  and 
judicial  vetoes.  The  state  in  which  the  electorate  has  made  the 
most  vigorous  use  of  its  powers  is  Oregon.  Down  to  the  close 
of  the  year  1914  six  measures  which  had  been  enacted  by  the 
legislature  and  approved  by  the  governor  had  been  vetoed  by 
the  Oregon  electorate  by  means  of  the  optional  referendum. 
During  the  same  period  eighteen  measures  were  vetoed  by  the 
Oregon  supreme  court  and  two  hundred  or  more  by  the  governor. 
In  Oregon,  however,  the  courts  exercise  the  judicial  veto  with 
great  caution,  and  the  governor  may  use  the  executive  veto 
only  during  the  course  of  the  legislative  session  or  within  five 
days  of  its  close,  and  may  not  veto  separate  items  of  appropria- 
tion acts.  In  states  where  the  courts  exercise  their  political 
powers  more  boldly  and  where  the  executive  veto  is  more  highly 
developed  than  in  Oregon,  the  disproportion  between  the  results 
of  the  executive  and  judicial  vetoes  and  of  the  popular  veto 
would  be  even  greater  than  in  Oregon.  When  the  character  as 
well  as  the  quantity  of  legislation  vetoed  by  the  executives  and 
courts  is  considered,  it  is  obvious  that  the  burden  of  checking 


458       STATE  GOVERNMENT  IN  UNITED  STATES 

undesirable  legislation  now  borne  by  the  executives  and  courts 
could  not  be  shifted  to  the  state  electorates.  If  the  established 
balance  between  the  legislatures  and  the  coordinate  departments 
were  upset,  there  is  little  reason  to  believe  that  an  equally  effec- 
tive balance  between  the  existing  legislatures  and  the  electorates 
could  be  contrived.  Neither  the  practice  of  direct  legislation 
by  the  electorates  nor  the  recall,  as  has  been  shown,  gives  promise 
of  any  such  development  as  would  warrant  a  reversion  to  the 
system  of  legislative  supremacy,  which  many  of  the  states  have 
already  tried  and  rejected,  limited  only  by  the  direct  action  of 
the  electorates. 

The  Socialist  reply  to  the  charge  that,  so  far  as  concerns  their 
attitude  towards  the  division  of  powers,  they  are  stupid  re- 
actionaries, is  to  point  to  their  demand  for  proportional  represen- 
tation. It  will  not  be  necessary,  they  urge,  to  rely  greatly  upon 
direct  action  by  the  electorates  for  protection  against  legisla- 
tive abuses,  when  the  legislature  itself  is  properly  constituted. 
Under  a  representative  system  based  on  proportional  represen- 
tation, it  is  claimed,  the  legislature  will  represent  the  whole 
body  of  voters,  not,  as  at  present,  that  fraction  which  has  been 
so  fortunate  as  to  cast  their  ballots  for  the  successful  candidates 
in  the  several  representative  districts.  Thus  each  considerable 
group,  holding  like  opinions,  may  secure  a  representative  of  its 
own,  regardless  of  geographical  distribution.  Each  representa- 
tive, moreover,  will  be  the  best  man  available  for  selection  by  the 
group  whose  predominant  opinions  he  shares.  There  will  be  no 
colorless,  not  to  say  unprincipled,  compromise  candidates,  now 
so  much  in  demand  in  doubtful  districts ;  there  will  be  no  narrow 
restriction  of  candidacies  by  artificial  residence  requirements ; 
there  will  be  the  promise  of  long-continued  service  for  honorable 
and  capable  men.  A  legislature,  so  chosen  and  containing  such 
a  body  of  members,  will  produce  legislation  more  acceptable  to 
the  people  and  technically  more  nearly  perfect  than  that  pro- 
duced by  the  existing  state  legislatures.  Since  any  group  of 
voters  will  be  free  to  select  their  own  candidates  and  any  citizen 
will  be  free  to  appeal  to  his  followers  in  all  parts  of  the  state,  or 
at  least  in  comparatively  large  districts,  for  support,  there  will 
be  no  need  for  elaborate  systems  of  nomination,  and  therefore 
little  likelihood  of  undue  influence  by  any  "  invisible  government." 


THE  FURTHER  REFORM  OF  STATE  GOVERNMENT    459 

The  artificial  combination  of  the  bulk  of  the  voters  into  two  major 
parties  will  give  way  to  more  numerous  and  more  natural  group- 
ings, and  party  government  will  give  way  to  popular  govern- 
ment. From  the  time  when  J.  S.  Mill  was  first  captivated  by 
these  arguments,  the  theory  of  proportional  representation  has 
made  a  strong  appeal  to  idealistic  reformers.  Upon  more  prac- 
tical grounds  also  it  makes  a  strong  appeal  to  Socialists  and  the 
members  of  other  minor  parties. 

Before  accepting  the  claims  of  the  advocates  of  proportional 
representation,  there  are  two  queries  to  be  considered.  First, 
what  is  the  justification  of  the  existing  bipartisan  system  in 
state  politics?  That  is,  what  are  the  reasons  for  opposing  such  a 
splitting  up  of  the  major  parties  into  minor  groups  as  would 
result  from  the  introduction  of  proportional  representation, 
according  to  its  advocates? 

The  case  in  favor  of  bipartisan  politics  in  general  has  been 
strongly  put  by  a  writer  who  is  himself  an  influential  Socialist 
politician.1  Democracy,  Macdonald  argues,  means  voting  for  a 
general  policy,  not  merely  for  an  individual  representative. 
This  view  may  be  illustrated  by  the  case  of  a  Prohibitionist, 
elected  to  membership  in  some  representative  body.  He  would 
have  not  merely  to  vote  for  temperance  measures  but  to  support 
or  oppose  all  the  measures  of  the  administration  or  party  in  power. 
But  hi  accordance  with  the  theory  of  proportional  representation 
only  on  temperance  is  he  a  representative.  Therefore  propor- 
tional representation  would  weaken  the  representative  character 
of  legislation.  The  fundamental  error  of  proportional  represen- 
tation, Macdonald  concludes,  lies  in  regarding  the  representative 
body  merely  as  a  mirror  of  opinion,  whilst  it  is  in  fact  the  active 
will  of  the  community  which  it  represents.  "Thus  a  system  of 
proportional  representation  will  exaggerate  rather  than  remove 
those  dangers  which  arise  from  the  fact  that  governments  may 
not  be  really  representative.  It  is  a  method  of  election  for  secur- 
ing the  representation  of  fragments  of  political  thought  and  desire, 
and  for  inviting  those  fragments  to  coalesce  after  and  not  before 
elections.  ...  It  is  rather  in  accordance  with  the  requirements 
of  popular  rule  that  a  government  should  be  supported  by  such 

1  See  J.  R.  Macdonald,  Socialism  and  Government,  published  by  the  Independent 
Labour  Party,  London,  1909. 


460 

a  majority  as  makes  it  absolutely  responsible  for  its  actions, 
rather  than  that  it  should  have  to  effect  compromises  and  coali- 
tions which  do  not  reflect  popular  wishes  or  arise  from  popular 
demands."  1 

"Democracy  without  a  party  would  be  a  crowd  without  a 
purpose.  Each  person  would  follow  the  enticements  of  his  own 
personal  interests  or  his  own  personal  will.  .  .  .  The  people  as 
a  political  agency  have  to  develop  a  capacity  to  express  their  own 
will  and  to  discover  a  method  of  carrying  out  their  will.  Party 
alone  in  some  shape  or  form  enables  both  these  things  to  be 
done.  .  .  .  When  political  issues  are  pretty  clear  two  parties 
are  evidently  enough.  ...  A  party  is  an  organization  of  groups 
which  find  in  it  on  the  whole  a  better  companionship  than  in  any 
other  combination,  and  a  greater  effectiveness  than  they  would 
have  were  they  not  in  the  combination.  .  .  .  Under  the  party 
system  new  ideas  easily  permeate  the  active  mass  of  party  ad- 
herents. The  party  having  to  keep  in  touch  with  the  whole  of 
the  nation  is  far  more  responsive  to  changes  in  popular  outlook 
than  is  the  group  which  only  appeals  to  a  special  class  or  body 
of  opinion.  .  .  .  Some  Socialists  .  .  .  support  the  group  sys- 
tem on  the  ground  that  it  makes  for  the  liberty  of  the  electors. 
But  this  is  a  mistake.  A  majority  must  be  found  if  responsible 
government  is  to  exist,  and  no  group  can  be  inside  that  majority 
one  day  and  outside  it  the  next  day.  .  .  .  On  the  whole  it  seems 
to  me  far  better  that  the  absorption  of  groups  should  take  place 
outside  Parliament  than  that  they  should  combine  inside.  .  .  . 
Two  parties  will  thus  be  formed,  each  with  its  center  of  gravity 
determined  not  by  the  bargaining  of  parliamentary  managers 
and  the  barter  of  parliamentary  office,  but  by  public  opinion. 
And  so  I  return  to  the  argument  I  advanced  in  a  previous  chap- 
ter: a  group  system  of  government  is  not  so  democratic  as  a 
party  system  because  the  latter  to  a  greater  extent  than  the 
former  gives  the  electors  a  direct  voice  in  saying  what  is  to  be 
the  character  of  their  government."  2 

The  force  of  this  general  argument  against  proportional  rep- 
resentation, as  Macdonald  himself  would  admit,  varies  according 
to  circumstances.  It  is  clearly  greatest  in  the  instance  which 
he  had  particularly  in  mind  when  he  wrote,  that  of  the  British 

1  Op.  cit.,  i,  pp.  164-167.  2  Op.  cit.,  ii,  pp.  13-19. 


THE  FURTHER  REFORM  OF  STATE  GOVERNMENT    461 

Parliament.  It  would  not  be  so  great,  if  the  argument  were 
directed  particularly  against  a  proposal  to  adopt  some  system  of 
proportional  representation  in  the  election  of  members  of  the 
popular  branch  of  the  American  Congress,  for  the  federal  House 
of  Representatives  does  not  possess  the  full  responsibility  for  the 
conduct  of  affairs,  but  shares  its  political  powers  with  the  Senate 
and  President.  Neither  President  nor  Senators  are  so  dependent 
upon  the  support  of  a  co-partisan  majority  in  the  lower  house  as 
the  British  Cabinet  is  upon  the  House  of  Commons.  Moreover, 
the  will  of  the  American  people,  so  far  as  their  preference  between 
party  programs  is  concerned,  is  as  well,  if  not  better,  represented 
by  the  President  than  by  his  party  associates  in  Congress.  The 
argument  has  the  least  force  when  applied  to  the  problem  of 
representative  government  in  cities.  The  connection  between 
national  and  municipal  issues  is  remote,  and  the  organization  of 
the  voters  for  the  selection  of  municipal  officers  into  two  per- 
manent groups  upon  the  same  lines  as  in  national  politics  is  not 
justifiable  upon  the  particular  grounds  advanced  by  Macdonald. 
His  argument  can  only  justify  the  organization  of  two  special 
municipal  parties  upon  local  issues. 

The  maintenance  of  national  party  lines  in  local  politics  is 
commonly  justified  in  the  United  States  on  different  grounds 
than  those  advanced  by  Macdonald.  Thus  the  late  Senator 
Platt,  the  "easy  boss,"  is  reported  to  have  said :  "For  the  doc- 
trine of  non-partisanship  in  local  elections  I  had  the  sincerest 
and  the  profoundest  contempt.  I  used  to  be  amused  at  the 
that-settles-it  air  with  which  the  question  would  be  plumped  at 
me:  'What  has  a  man's  views  of  the  tariff  to  do  with  his  ca- 
pacity to  give  the  people  of  New  York  City  an  honest  and  busi- 
nesslike administration  ? '  -  —  as  though  my  agreement  that  they 
had  nothing  to  do  with  that  matter  involved  a  concession  to  the 
principle  of  local  non-partisanship.  It  has  everything  to  do 
with  a  man's  ability  to  administer  government,  anywhere  in  the 
North  or  West,  whether  the  influences  about  him  are  Republican 
or  Democratic ;  and  so  strong  is  the  predisposition  of  the  Ameri- 
can people  in  favor  of  a  party  as  a  political  agent,  and  so  strong 
is  their  prejudice  against  a  multiplicity  of  parties,  and  so  similar 
are  the  problems  of  administration,  no  matter  what  the  political 
division  to  which  they  relate,  that  it  is  idle  to  attempt  to  create 


462        STATE  GOVERNMENT  IN  UNITED  STATES 

municipal  parties  or  factions.  The  success  of  such  an  attempt 
would  have  a  demoralizing  effect  on  party  organization."  1  The 
growing  success  of  non-partisanship  in  municipal  government, 
however,  has  demonstrated  the  weakness  of  this  old-fashioned 
argument.  The  recent  experience  of  the  cities  indicates  the 
value  in  local  elections  of  any  electoral  system,  whether  "non- 
partisan  "  primaries,  preferential  voting,  or  proportional  represen- 
tation, which  will  discourage  the  maintenance  of  the  same  party 
divisions  in  both  national  and  local  affairs. 

Now  state  government  in  the  United  States  is  a  form  of  local 
government.  In  the  state  legislatures,  as  has  been  shown, 
national  party  lines  are  of  secondary  importance.  The  majority 
party  organizes  the  legislature,  appropriates  for  its  own  members 
the  speakership,  the  committee  chairmanships,  and  the  majority 
of  the  places  on  committees,  and  makes  a  partisan  distribution 
of  the  legislative  patronage.  Thereafter  little  attempt  is  made, 
except  in  a  few  close  states,  to  operate  the  machinery  of  legisla- 
tion on  a  partisan  basis,  and  members  rarely  vote  on  party  lines. 
The  party  caucus  ordinarily  has  nothing  to  do  after  the  selection 
of  the  candidate  for  the  speakership.  It  is  the  "organization" 
or  the  governor  to  whom  members  look  for  leadership.  Neither 
of  these  relies  for  support  exclusively  upon  the  party  majority, 
but  accepts  assistance  wherever  it  can  be  found.  It  is  only  in 
the  distribution  of  the  patronage  that  partisanship  upon  national 
lines  is  the  rule  in  state  government.  If  state  politics  were  sepa- 
rated from  state  administration  by  the  removal  from  the  ballot 
of  non-political  offices  and  by  the  general  introduction  of  the 
"merit  system,"  one  of  the  principal  difficulties  standing  in  the 
way  of  state  non-partisanship  would  be  overcome.  Non-parti- 
sanship in  state  and  municipal  elections  does  not  mean  the 
absence  of  partisanship.  It  means  merely  the  repudiation  of 
national  party  affiliations  as  the  basis  of  action  in  state  and  mu- 
nicipal politics.  Doubtless  it  would  be  more  difficult  to  organize 
special  parties  upon  state  issues  than  it  is  to  organize  special 
parties  upon  municipal  issues.  For  that  reason  the  recognition 
of  national  political  associations  and  the  protection  of  the  integ- 
rity of  the  major  parties  may  be  more  suitable  measures  in  the 

1  The  autobiography  of  Thomas  Collier  Platt,  compiled  and  edited  by  Louis 
J.  Lang,  pp.  3S8-359- 


THE  FURTHER  REFORM  OF  STATE  GOVERNMENT  463 

government  of  the  states  than  in  municipal  government  for 
making  representative  government  responsible  to  the  majority 
of  the  voters,  but  they  are  certainly  less  suitable  than  in  the 
government  of  the  nation. 

The  second  query  which  must  be  considered  before  the  claims 
of  the  advocates  of  proportional  representation  can  be  accepted 
is  this.  What  is  it  that  in  actual  practice  under  American  condi- 
tions will  be  proportionally  represented? 

The  advocates  of  proportional  representation  often  appear  to 
assume  that  it  is  groups  of  voters,  united  for  the  purpose  of  pro- 
moting the  public  interest  upon  some  particular  principle  in 
which  they  are  all  agreed,  which  will  be  proportionally  repre- 
sented. Now,  as  Graham  Wallas  has  so  convincingly  shown, 
"the  origin  of  any  particular  party  may  be  due  to  a  deliberate 
intellectual  process.  .  .  .  But  when  a  party  has  once  come  into 
existence,  its  fortunes  depend  upon  the  facts  of  human  nature  of 
which  deliberate  thought  is  only  one."  *  When  the  highly  arti- 
ficial major  parties  are  broken  up,  as  the  advocates  of  propor- 
tional representation  claim  they  will  be,  into  smaller  and  more 
natural  groups  of  voters,  it  is  by  no  means  certain  that  the  lines 
of  subdivision  will  be  rational,  that  is,  that  "principles"  will  be 
the  basis  of  union  between  the  members  of  such  groups.  In 
Ashtabula,  we  are  told,  as  a  result  of  the  first  employment  of 
proportional  representation,  "all  sections  and  factions  are  rep- 
resented in  the  new  council."  Though  the  seven  councilors 
were  elected  in  the  city  at  large,  regardless  of  the  former  division 
into  four  wards,  "there  were  two  from  the  first  ward,  one  from 
the  second,  two  from  the  third,  and  two  from  the  fourth.  .  .  . 
The  'drys'  and  the  'wets'  are  represented.  The  Protestants 
and  Catholics ;  the  business,  professional,  and  laboring  men ;  the 
Republicans,  Democrats,  and  Socialists ;  the  English,  Swedes, 
and  Italians  are  all  represented."  2  Now  this  was  probably,  as 
claimed  by  the  advocates  of  proportional  representation,  the 
most  representative  body  in  the  history  of  the  city.  But  much 
besides  "principles"  was  represented.  Local,  religious,  partisan, 
social,  and  racial  ties  were  likewise  represented.  If  the  "drys" 
and  "wets"  or  the  Swedes  and  Italians  deliberately  or  instinc- 

1  Human  Nature  in  Politics,  pp.  82-83. 

1  Proportional  Representation  Review,  3d  scries,  no.  37,  pp.  19-24. 


464       STATE  GOVERNMENT  IN  UNITED  STATES 

tively  unite  in  order  to  elect  special  "dry"  and  "wet"  or  Swedish 
and  Italian  representatives,  there  is  no  security  that  these  repre- 
sentatives will  actually  represent  them  on  any  but  the  liquor  or 
racial  question.  To  what  extent,  under  such  a  system,  voters 
will  unite  in  the  choice  of  representatives  as  a  result  of  rational 
intellectual  processes  and  to  what  extent  as  a  result  of  impulses 
and  instincts  of  which  they  may  not  be  consciously  aware,  can 
be  determined  only  by  experience.  The  practice,  however,  of 
electing  men  to  represent  particular  localities  in  city  councils 
because  they  are  Republicans  or  Democrats  in  national  politics, 
fails  to  insure  that  such  representatives  will  actually  represent 
their  constituents  on  any  local  question;  and  impulse  and  in- 
stinct certainly  are  riot  excluded  from  politics  under  the  system 
of  local  representation.  At  all  events,  the  defects  of  the  existing 
representative  system  are  serious,  especially  in  populous  urban 
localities,  and  the  advantages  claimed  for  proportional  represen- 
tation are  substantial  and  important.  The  proposal  is  at  least 
promising  enough  to  merit  further  trial,  but  municipal  rather 
than  state  government  seems  the  more  suitable  field  for  the 
experiment. 

The  Socialist  plan  of  reform,  as  applied  to  the  government  of 
the  states,  is  objectionable,  considered  as  a  whole,  because  it 
places  an  excessive  reliance  upon  direct  action  by  the  electorate 
and  upon  reforms  in  electoral  methods.  Direct  action  by  the 
electorate,  as  has  already  been  pointed  out,  serves  as  a  useful 
check  on  the  operations  of  representative  government,  but  its 
usefulness  is  limited,  both  quantitatively  and  qualitatively. 
The  reform  of  electoral  methods  has  already  made  considerable 
progress,  but  much  remains  to  be  done  before  an  election  can 
become  a  wholly  reliable  means  of  expressing  public  opinion. 
The  existing  laws  against  corrupt  practices  represent  rather  the 
growing  purpose  of  the  states  to  control  the  conditions  under 
which  electoral  opinion  is  formed  than  any  large  measure  of 
success  in  carrying  out  that  purpose.  Meanwhile,  plans  for  the 
reform  of  state  government  which  depend  for  their  efficacy  almost 
entirely  upon  electoral  action  and  upon  the  improvement  of  the 
methods  of  voting  and  of  counting  votes,  rather  than  upon  the 
improvement  of  methods  of  legislation  and  administration,  seem 
likely,  if  adopted,  to  prove  disappointing  to  their  advocates. 


THE  FURTHER  REFORM  OF  STATE  GOVERNMENT  465 

HI 

THE  OREGON  PLAN 

Another  noteworthy  plan  for  the  reform  of  state  government 
is  that  elaborated  by  a  group  of  Oregon  reformers,  well  known  in 
their  own  state  under  the  name  of  the  People's  Power  League. 
The  essentials  of  this  plan  are  explained  by  one  of  its  principal 
authors,  Mr.  U'&en,  in  a  letter  to  which  reference  has  already 
been  made.1  "In  my  opinion  the  experience  of  mankind  indicates 
that  the  path  to  follow  to  make  the  best  government  is  the  elec- 
tion of  a  responsible  and  responsive  legislature  composed  of  the 
brightest  constructive  minds  in  the  community ;  that  the  execu- 
tive shall  be  a  member  of  the  legislative  body ;  that  laws  made 
by  the  people,  or  by  the  legislature  and  not  disapproved  by  the 
people,  shall  be  the  supreme  law  of  the  land,  superior  to  the  courts 
and  all  other  officers.  That  only  the  chief  executive  and  the 
members  of  the  legislative  bodies  should  be  elected  by  the  people ; 
that  the  preferential  method  should  be  used  in  the  election  of 
the  executive,  and  some  effective  method  of  proportional  repre- 
sentation in  the  election  of  other  members  of  the  legislature.  The 
executive  should  be  directly  and  alone  responsible  for  the  maximum 
of  all  appropriations  of  public  money.  This  is  to  kill  corrupt 
log-rolling.  The  comparative  success  of  the  parliamentary 
form  of  government  and  of  the  Prussian  cities  in  my  opinion  is 
clearly  because  of  their  partial  application  of  these  principles. 
It  is  to  be  understood  of  course  that  the  initiative,  referendum, 
and  recall  are  absolutely  essential  parts  of  any  successful  system 
of  popular  government."  2 

1  See  Equity,  July,  1913,  pp.  163-164. 

*  The  Oregon  plan  as  a  whole  was  never  submitted  to  the  people  of  Oregon.  The 
state-wide  initiative  and  referendum,  adopted  after  a  long  struggle  in  1002,  the 
direct  primary,  municipal  home  rule,  the  corrupt  practices  act,  and  the  recall, 
adopted  by  means  of  the  initiative  in  1904,  1906,  and  1008,  may  be  regarded  as  in- 
stalments of  the  general  plan.  The  proposals  relating  to  the  reform  of  legislative 
organization  and  procedure  were  submitted  to  the  people  in  various  forms  in  1910, 
1912,  and  1914,  but  were  rejected.  The  proposals  for  administrative  reform  were 
submitted  in  1910  and  in  part  in  1912  with  the  same  result.  The  proposals  for 
judicial  reform  were  submitted  in  part  in  1910  and  adopted,  but  that  part  of  the 
plan  seems  never  to  have  been  completely  worked  out.  The  details  of  the  plan 
vary  somewhat  in  the  different  proposals  which  were  submitted  to  the  people,  but 
its  general  nature  is  best  represented  by  the  Introductory  Letter  of  1911,  published 
by  the  People's  Power  League. 
an 


466       STATE  GOVERNMENT  IN  UNITED  STATES 

The  resemblances  between  the  Oregon  and  Socialist  plans  are 
apparent.  Both  include  the  abolition  of  the  state  senate  and  the 
election  of  members  of  the  house  by  some  system  of  proportional 
representation,  the  abolition  of  the  executive  and  judicial  vetoes, 
and  the  adoption  of  the  direct  popular  veto,  initiative,  and  recall. 
But  the  differences  are  no  less  important.  The  Oregon  plan,  as 
set  forth  in  1911  in  the  Introductory  Letter  of  the  People's  Power 
League,  abandons  the  direct  popular  election  of  executive  officers, 
with  the  exception  of  governor  and  auditor,  and  presumably 
would  have  abandoned  the  direct  election  of  judges,  had  that 
part  of  the  plan  been  fully  worked  out.  The  governor  is  author- 
ized to  appoint  the  principal  department  heads,  secretary  of 
state,  treasurer,  attorney-general,  state  printer,  and  super- 
intendent of  public  instruction,  together  with  a  new  officer, 
called  the  state  business  manager,  who  is  charged  with  the  super- 
vision of  the  rest  of  the  administrative  work  of  the  state,  except 
that  of  the  railroad  commission.  The  state  business  manager  is 
clearly  intended  to  be  the  most  important  administrative  officer. 
Indeed  it  seems  to  be  the  purpose  of  the  plan  that  he  should 
occupy  much  the  same  position  in  relation  to  the  governor  as  the 
citysmanager  occupies  in  relation  to  the  council  under  the  Dayton 
plan  of  municipal  government.  These  department  heads  are 
removable  by  the  governor  at  will  and  collectively  form  an 
executive  council  or  cabinet.  The  governor  is  expressly  for- 
bidden, however,  to  remove  the  state  business  manager  or  any 
subordinate  administrative  officer  for  partisan  reasons.  Thus 
the  governor  becomes  exclusively  a  political  leader,  and  the  con- 
duct of  administration  is  vested  for  the  most  part  in  a  responsible 
professional  administrator  and  his  subordinates.  Politics  is  sep- 
arated from  administration,  and  by  removing  the  purely  admin- 
istrative officers  (except  the  auditor)  from  the  ballot,  the  number 
of  elected  officers  is  greatly  reduced,  without  diminishing  popular 
control  over  those  who  exercise  political  powers.  In  brief,  the 
introduction  of  the  short  ballot  is  a  leading  feature  of  the  ma- 
tured Oregon  plan.  As  the  ideas  of  the  Oregon  reformers  devel- 
oped, they  came  to  be  as  much  interested  in  the  promotion  of 
administrative  efficiency  as  in  the  progress  of  democracy.1 

1  The  Oregon  plan  of  191 1  provided  for  a  further  reduction  of  the  burden  thrown 
upon  the  electorate,  under  the  existing  Oregon  system  of  popular  government,  by 


THE  FURTHER  REFORM  OF  STATE  GOVERNMENT    467 

The  most  important  difference  between  the  Oregon  and 
Socialist  plans  relates  to  the  readjustment  of  the  relations  be- 
tween the  executive  and  the  legislature.  Under  the  Oregon 
plan  of  1911  the  governor  and  the  members  of  his  cabinet  were 
to  have  seats  in  the  legislature  and  to  be  entitled  to  participate 
in  debates.  The  governor  was  also  to  have  the  exclusive  right 
to  introduce  appropriation  bills.  The  legislature  could  reduce 
or  reject  any  proposed  appropriation,  but  could  not  make  any 
increase  without  the  express  approval  of  the  governor.  Though 
he  was  to  be  deprived  of  the  veto,  under  the  proxy  system  of 
proportional  representation,  he  would  normally  have  a  greater 
voice  in  legislation  than  any  ordinary  member  of  that  body.  In 
other  words,  the  governor  was  not  only  to  become  a  part  of  the 
legislature,  but  it  was  clearly  intended  that  he  should  take  the 
lead  in  the  work  of  legislation,  like  the  British  prime  minister  hi 
the  business  of  Parliament.  Indeed  there  was  much  in  the  Ore- 
gon plan  in  its  matured  form  that  resembles  the  parliamentary 
system  of  government.  The  governor  and  the  members  of  his 
cabinet  were  not  only  to  have  the  privilege  of  speaking  in  the 
legislature,  but  also  were  to  be  required  to  appear  before  it,  when 
requested,  like  members  of  the  British  cabinet  before  the  House  of 
Commons,  and  answer  questions  concerning  their  conduct  of 
affairs.  The  speaker  was  to  be  deprived  of  the  power  to  appoint 
committees  and  control  the  course  of  legislation,  and,  like  the 
British  speaker,  was  to  be  a  nonpartisan  presiding  officer.  By 
appropriate  changes  in  the  committee  system  and  in  legislative 
procedure  the  leadership  of  the  governor  in  the  legislature  was  to 
be  further  fortified.  In  short,  in  place  of  the  rigid  separation 
of  the  executive  and  legislative  branches,  as  practiced  in  both 
state  and  federal  governments,  there  was  to  be  a  union  of  execu- 
tive and  legislature.  But  it  was  a  union  designed  to  bring  only 
the  political  powers  vested  in  the  two  branches  nearer  together. 

abolishing  the  direct  primary  for  the  nomination  of  candidates  for  legislative  and 
executive  office.  The  adoption  of  proportional  representation  would  have  made 
the  direct  primary  superfluous  in  the  former  case,  the  adoption  of  preferential 
voting  would  have  had  the  same  effect  in  the  latter.  But  on  this  point  there  was 
no  difference  between  the  Oregon  and  Socialist  plans  so  far  as  the  case  of  representa- 
tives™ the  legislature  was  concerned,  nor  is  it  probable  that  the  Socialists  would 
object  to  the  substitution  of  preferential  voting  for  the  direct  primary  in  the  case 
of  executive  officers. 


468       STATE  GOVERNMENT  IN  UNITED  STATES 

The  separation  of  administration  from  politics,  as  already  pointed 
out,  was  to  be  more  effectually  secured  than  ever  before. 

The  proposal  to  introduce  certain  features  of  the  British  cabinet 
system  into  the  United  States  is  not  new.  The  founders  of  the 
Southern  Confederacy  were  familiar  with  the  defects  of  the  tradi- 
tional American  practice,  and  when  they  came  to  adopt  a  con- 
stitution for  the  Confederate  States  they  took  advantage  of  the 
opportunity  to  make  some  changes  in  the  established  relations 
between  executive  and  legislature.  Reference  has  already  been 
made  to  the  increase  of  executive  control  over  appropriations 
authorized  in  the  Confederate  Constitution.  In  addition,  it 
was  provided  that  "Congress  may  by  law  grant  to  the  principal 
officer  in  each  of  the  executive  departments  a  seat  upon  the  floor 
of  either  House,  with  the  privilege  of  discussing  any  measure 
appertaining  to  his  department."  l  A  committee  of  the  United 
States  Senate  in  1881  recommended  a  further  step  in  the  establish- 
ment of  closer  relations  between  executive  and  legislature.2  It 
proposed  that  the  members  of  the  President's  cabinet  not  only 
should  have  the  right  to  participate  in  debates  in  either  house  of 
Congress,  but  also  should  be  under  the  obligation  to  answer  ques- 
tions which  might  be  put  to  them  by  members  of  Congress.  This 
sounds  much  like  the  Oregon  plan.  But  there  were  two  im- 
portant differences.  First,  the  proposals  of  the  Senate  Com- 
mittee of  1 88 1  applied  only  to  members  of  the  president's  cabinet, 
whilst  those  of  the  Oregon  reformers  applied  to  the  chief  executive 
as  well  as  to  the  members  of  his  cabinet.  Secondly,  the  Senate 
Committee  further  proposed  that,  immediately  after  the  answer 
to  the  question  should  be  made  by  the  cabinet  officer  to  whom  it 
might  be  directed,  and  without  any  debate,  there  should  be  a  vote 
on  the  resolution  upon  which  the  question  is  based.  Thus  the 
proposal  of  the  Senate  Committee,  if  adopted,  would  have  es- 
tablished a  practice  much  more  like  that  existing  in  the  French 
parliament,  known  as  the  interpellation,  than  the  English  practice 
of  questioning,  proposed  by  the  Oregon  reformers. 

The  readjustment  of  the  relations  between  the  executive  and 
the  legislature,  proposed  by  the  framers  of  the  Confederate  Con- 
stitution, was  never  tried  out  under  normal  conditions,  and  that 

1  Art.  i,  sect.  6,  par.  2. 

*  See  Senate  Report,  no.  837,  46th  Congress,  3d  Session,  Feb.  4,  1881. 


THE  FURTHER  REFORM  OF  STATE  GOVERNMENT  469 

proposed  by  the  United  States  Senate  Committee  of  1881  has 
never  been  tried  out  at  all.  But  there  has  been  much  discussion 
of  these  proposals,  especially  the  latter,  by  writers  upon  American 
politics.  Woodrow  Wilson's  brilliant  essay  on  Congressional 
Government,  for  example,  was  designed  as  a  plea  for  closer  re- 
lations between  the  two  coordinate  branches  along  the  lines 
suggested  by  the  Senate  Committee.  Among  later  writers 
who  have  looked  with  favor  on  these  proposals,  the  general 
tendency  has  been  to  assume  that  their  adoption  would  mean 
the  introduction  of  some  form  of  the  British  cabinet  system. 
Thus  Ford  in  his  book,  The  Rise  and  Growth  of  American  Politics,1 
bestows  high  praise  on  the  Senate  Committee  report,  and  pre- 
dicts that  the  ultimate  type  of  government  in  the  United  States 
will  be  one  in  which  "the  actual  management  of  affairs  will 
naturally  tend  to  pass  into  the  hands  of  groups  of  statesmen 
trained  to  their  work  by  gradations  of  public  service,  their  fitness 
attested  by  success  in  coping  with  their  responsibilities  under  the 
direct  and  continuous  scrutiny  and  criticism  of  Congress.  The 
presidency  will  tend  to  assume  an  honorary  and  a  ceremonial 
character,  and  will  find  therein  its  most  satisfactory  conditions 
of  dignity  and  usefulness."  2  And  Kales,  in  his  book,  Unpopular 
Government  in  the  United  States,  dealing  particularly  with  state 
government,  expresses  more  bluntly  a  similar  conviction.  Speak- 
ing of  the  time  when  the  cabinet  system  is  established  in  the  form 
he  advocates,  he  declares  that  "  the  method  of  selecting  the  single 
executive,  whose  principal  function  it  is  to  place  the  executive 
power  from  time  to  time  in  the  control  of  a  proper  council  of  state, 
selected  from  among  the  leaders  of  the  majority  of  the  legislature, 
is  not  very  important."  3  The  plans  advanced  by  these  writers 
for  the  introduction  of  the  cabinet  system,  when  examined  closely, 
seem  to  contemplate  the  adoption  of  the  form  of  the  system 
existing  in  France,  with  its  dignified  but  relatively  unimportant 
president  and  its  active  ministry,  responsible  mainly  to  parlia- 
ment. 


1  See  H.  J.  Ford,  op.  cit.,  pt.  iv.,  Tendencies  and  Prospects  of  American  Politics, 
New  York,  1898. 

2  Op.  cit.,  p.  369. 

•  A.  M.  Kales,  op.  cit.  (Chicago,  1914),  p.  170.    Cf.,  for  an  exposition  of  Kales's 
general  plan  of  reform,  chaps.  14-16. 


470       STATE  GOVERNMENT  IN  UNITED  STATES 

A  little  reflection  will  show  that  the  proposal  to  introduce  either 
the  French  or  the  British  cabinet  system  into  the  government  of 
the  states  runs  counter  to  the  whole  course  of  their  constitutional 
development.  The  constitutional  history  of  the  states  is  a 
history  of  the  growth  of  limitations  upon  the  authority  of  the 
legislatures  and  of  the  expansion  of  that  of  the  executive.  The 
governor  in  particular  has  gradually  become  the  special  object 
of  popular  confidence,  and  has  been  endowed  with  more  impor- 
tant legislative  powers  than  are  vested  in  any  other  single  officer. 
Now  the  introduction  of  the  cabinet  system  in  either  the  English 
or  the  French  form  means  that  the  chief  of  the  cabinet  will  not 
be  the  governor,  elected  by  the  people,  but  a  member  of  the 
legislature,  chosen  by  the  majority  of  that  body.  It  means  there- 
fore the  enhancement  of  the  authority  of  the  legislature  and  the 
decline  of  that  of  the  nominal  chief  executive.  The  latter  indeed 
would  be  deprived  of  his  leadership  in  state  politics.  Popular 
election  of  the  governor,  as  Kales  intimates,  would  no  longer  be 
worth  while.  Such  a  redivision  of  powers  between  the  legislature 
and  the  executive  would  be  a  reversal  of  the  process  that  has  been 
going  on  since  the  system  of  legislative  supremacy  was  first 
questioned  in  the  original  states.  It  would  cause  the  destruction 
of  the  existing  balance  between  the  departments  of  government. 
It  has  already  been  pointed  out  that  there  is  no  present  need  for 
the  abandonment  of  the  principle  of  the  division  of  powers  in 
state  government.  What  is  needed  is  a  more  rational  applica- 
tion of  the  principle.  That  means,  more  than  anything  else, 
the  further  strengthening  of  the  executive  branch  of  the  state 
governments  along  the  lines  that  have  been  pursued  in  the  past, 
subject  to  an  effective  popular  control. 

Other  advocates  of  the  establishment  of  closer  relations  between 
executive  and  legislature  contemplate  the  introduction  of  the 
cabinet  system  in  a  different  form.  Bradford,  for  example, 
in  his  book,  The  Lesson  of  Popular  Government,1  denies  that  the 
cabinet  system,  which  he  proposes  for  adoption,  is  an  imitation 
of  the  British  or  French  system.  He  argues  that  the  President's 
or  governor's  cabinet,  though  entitled  to  seats  and  a  voice  in  the 
legislative  branch,  would  not  become  responsible  to  the  legis- 

1  Gamaliel  Bradford,  The  Lesson  of  Popular  Government,  chaps.  30-32.  New 
York,  1899. 


THE  FURTHER  REFORM  OF  STATE  GOVERNMENT    471 

lature,  but  remain  responsible  to  the  chief  executive.  Under 
the  German  system,  he  points  out,  the  imperial  chancellor  and  his 
associates  do  not  become  responsible  to  the  Reichstag,  though 
privileged  to  speak  and  obliged  to  answer  questions  in  that  body. 
They  remain  responsible  to  the  Emperor.  In  the  United  States 
or  in  the  separate  states,  where  the  chief  executive  is  elected  by 
the  people,  and  can  be  called  to  account  by  them  at  compara- 
tively frequent  intervals,  he  believes  that  the  introduction  of  the 
cabinet  system,  if  no  other  changes  were  made  in  the  organiza- 
tion and  powers  of  the  executive,  would  increase  its  authority 
instead  of  diminishing  it.  The  results  of  the  system  would  be 
greater  publicity  for  legislative  proceedings,  greater  opportunity 
for  leadership,  and  more  definite  responsibility,  not  to  the  legis- 
lature, but  to  the  people,  on  the  part  of  the  chief  executive. 
Thus  the  introduction  of  the  cabinet  system  is  advocated  on  the 
ground  that  it  is  thoroughly  in  harmony  with  the  tendency  in 
American  politics  to  strengthen  the  chief  executive  in  his  relations 
with  the  legislature  and  to  enhance  his  political  authority  as 
the  special  representative  of  the  whole  people.  It  is  this  view 
of  the  situation  which  probably  determined  the  Oregon  reformers 
to  adopt  the  plan,  set  forth  in  the  Introductory  Letter  of  1911, 
but  they  developed  the  idea  more  boldly  and  more  consistently 
than  Bradford  had  done. 

It  would  be  a  mistake  to  conclude  that  the  Oregon  plan  was  an 
attempt  to  introduce  the  British  or  French  cabinet  system  into 
the  United  States.  The  direct  election  of  the  governor  by  the 
people  and  his  resulting  independence  of  the  legislature,  not  to 
mention  his  power  under  the  proposed  system  of  proportional 
representation  to  vote  as  the  special  representative  of  all  members 
of  his  party  not  otherwise  represented  as  well  as  to  speak  in  the 
legislature,  were  calculated  to  make  him  a  more  powerful,  and 
also,  from  the  viewpoint  of  the  people,  a  more  responsible  political 
leader  than  the  British  prime  minister.  On  the  other  hand,  the 
popular  veto,  initiative,  and  recall  make  the  legislature  less 
powerful,  even  within  its  restricted  constitutional  sphere,  than 
the  British  House  of  Commons.  The  Oregon  reformers,  in  one 
draft  of  their  plan,  proposed  to  strengthen  the  legislature  some- 
what by  extending  its  term  to  six  years,  but  even  had  that  been 
done,  the  governor  would  have  been  a  more  important  figure  than 


472       STATE  GOVERNMENT  IN  UNITED  STATES 

the  prime  minister  in  the  parliamentary  system  of  Great  Britain. 
The  conditions  under  which  the  cabinet  engrosses  most  of  the 
executive  powers  in  the  British  and  French  systems  would  not 
exist  in  the  system  proposed  by  the  Oregon  reformers.  The 
British  cabinet  system  is  a  system  of  undivided  powers,  for  those 
which  the  Parliament  confers  upon  a  ministry  it  can  also  take 
away.  The  cabinet  is  but  a  committee  of  Parliament.  The 
Oregon  plan  contemplated  a  real  division  of  powers,  that  could 
not  be  altered  except  by  the  process  of  constitutional  amendment, 
a  process  not  controlled  by  the  legislature.  Thus  the  Oregon 
plan  resembled  the  German  rather  than  the  English  cabinet 
system,  but  it  was  not  identical  with  either.  The  German  is  an 
irresponsible  cabinet  system,  but  the  Oregon  plan,  if  adopted, 
would  have  left  the  governor  and  his  cabinet  completely  respon- 
sible to  the  people.  It  was  really  a  logical  development  of  the 
traditional  American  theory  of  government,  a  redivision  of 
powers  on  lines  calculated  to  give  more  adequate  recognition 
to  the  expert  administrator  and  a  greater  opportunity  to  the 
governor  for  political  leadership  than  has  hitherto  been  possible 
in  any  American  state. 

The  Oregon  plan,  so  far  as  it  was  concerned  with  the  reorgani- 
zation of  state  administration  and  the  establishment  of  closer 
relations  between  executive  and  legislature,  was  in  fact  the  fore- 
runner of  a  number  of  similar  plans  for  the  reform  of  state  govern- 
ment. In  1910  President  Taft  obtained  from  Congress  an  ap- 
propriation of  one  hundred  thousand  dollars  to  enable  him  "to 
inquire  into  the  methods  of  transacting  the  public  business  of  the 
executive  departments  and  other  government  establishments 
and  to  recommend  to  Congress  such  legislation  as  may  be  neces- 
sary to  carry  into  effect  changes  found  to  be  desirable  that  cannot 
be  accomplished  by  executive  action  alone."  This  was  the  be- 
ginning of  a  general  movement  for  greater  economy  and  efficiency 
in  the  business  of  government,  both  national  and  state.  In 
1912  Massachusetts  and  New  Jersey  established  state  economy 
and  efficiency  commissions,  and  in  the  following  year  similar 
action  was  taken  in  several  states,  notably  in  Illinois,  Iowa, 
Minnesota,  and  Pennsylvania.  In  New  York  a  Department  of 
Efficiency  and  Economy  was  created,  and  in  the  following  year, 
after  the  people  had  approved  the  call  for  a  constitutional  con- 


THE  FURTHER  REFORM  OF  STATE  GOVERNMENT  473 

vention,  a  special  commission  was  appointed  to  procure  all  in- 
formation that  might  be  useful  to  that  body  when  it  should  meet. 
The  result  was  a  more  careful  consideration  than  had  ever  before 
been  practicable  of  the  advantages  of  administrative  reorganiza- 
tion and  of  the  readjustment  of  executive  and  legislative  relations 
from  the  standpoint  of  economy  and  efficiency.  The  various 
state  commissions  came  to  surprisingly  uniform  conclusions.1 
They  all  recommended  more  or  less  extensive  consolidations  of 
separate  administrative  departments,  and  most  of  them  also 
recommended  greater  executive  control  of  appropriations.  Some 
minor  improvements  in  methods  of  transacting  public  business 
were  actually  brought  about,  and  in  many  instances  a  healthier 
tone  was  imparted  to  state  administration.  In  general,  however, 
the  state  legislatures  neglected  the  more  important  recommenda- 
tions, and  except  in  New  York,  no  general  plan  of  reform  re- 
quiring constitutional  changes  was  carried  to  the  point  of  sub- 
mission to  the  people. 

The  principal  features  of  the  plan  to  secure  greater  economy 
and  efficiency  in  state  government,  as  developed  by  the  New  York 
Constitutional  Convention  of  1915,  were  as  follows:  (i)  the 
shortening  of  the  ballot  by  the  removal  of  several  administrative 
officers  from  the  elective  to  the  appointive  class;  (2)  the  aboli- 
tion of  the  power  of  the  senate  to  reject  nominations  of  depart- 
ment heads  in  certain  cases ;  (3)  the  consolidation  of  one  hundred 
and  fifty  and  more  separate  administrative  agencies  into  a  manage- 
able number  of  executive  departments;  (4)  the  extension  and 

',x  Among  the  reports  of  these  state  commissions  the  following  are  the  most 
important:  i.  Massachusetts,  Commission  on  Economy  and  Efficiency,  a.  Func- 
tions, Organization,  and  Administration  of  the  Departments  in  the  Executive  Branch 
of  the  State  Government,  1914.  b.  Report  on  Budget  Procedure,  1916.  2.  New  Jer- 
sey, Commission  upon  the  Reorganization  and  Consolidation  of  different  Depart- 
ments of  the  State  Government  whose  functions  are  interrelated.  Second  Report, 
1914.  3.  Illinois,  Efficiency  and  Economy  Committee,  Report,  1915.  4.  Iowa, 
Committee  on  Retrenchment  and  Reform,  Recommendations,  1914.  5.  Minnesota, 
Efficiency  and  Economy  Commission,  Final  Report,  1914.  6.  Pennsylvania, 
Economy  and  Efficiency  Commission,  Report,  1915.  7.  New  York,  Department  of 
Efficiency  and  Economy,  a.  Stale  Budget  Report,  1914.  b.  Government  of  the  Stale 
of  New  York,  a  Survey  of  its  Organization  and  Functions,  1915.  (Prepared  in  collab- 
oration with  the  New  York  Bureau  of  Municipal  Research.)  The  New  York  Con- 
stitutional Convention  Commission  was  greatly  aided  by  the  New  York  Bureau  of 
Municipal  Research.  Bulletins  61,62,  and  63,  published  by  the  Bureau,  and  re- 
spectively entitled,  The  Constitution  and  Government  of  the  State  of  New  York,  Budget 
Systems,  and  State  Administration,  are  especially  valuable. 


474       STATE  GOVERNMENT  IN  UNITED  STATES 

strengthening  of  the  classified  civil  service  system  ;  (5)  the  charg- 
ing of  the  governor  with  the  duty  of  preparing  an  executive 
budget ;  (6)  the  making  difficult  of  any  increases  by  the  legis- 
lature in  the  appropriations  recommended  by  the  governor  in 
the  budget ;  and  (7)  the  establishment  of  closer  relations  between 
the  governor  and  his  department  heads,  on  the  one  hand,  and 
the  legislature,  on  the  other,  by  authorizing  the  former  to  speak 
in  either  house  on  matters  relating  to  the  budget  and  requiring 
them  to  attend  and  answer  questions  at  the  request  of  either 
house.1  Thus  the  New  York  plan  was  intended  to  increase  the 
authority  of  the  governor,  both  in  the  conduct  of  state  administra- 
tion and  in  his  relations  with  the  legislature.  The  New  York 
reformers  avowedly  founded  their  hopes  for  economy  and 
efficiency  on  the  development  of  further  limitations  upon  legis- 
lative powers  and  procedure,  especially  in  matters  of  finance. 
But  instead  of  relying,  in  accordance  with  a  tendency  that  has 
almost  uniformly  prevailed  for  more  than  a  hundred  years, 
upon  specific  constitutional  limitations,  enforceable  by  the  courts, 
or  upon  the  direct  action  of  the  electorate,  they  sought  rather  to 
shift  the  balance  of  power  between  governor  and  legislature, 
strengthening  the  check  exercised  by  the  former.  In  other  words, 
the  New  York  plan  for  an  executive  budget  may  be  regarded  as  a 
logical  development  of  the  executive  veto  power. 

The  New  York  plan  contains  many  points  of  resemblance  to 
that  of  the  Oregon  reformers.  Thus  the  New  York  short  ballot 
proposal,  if  adopted,  would  have  put  into  the  class  of  appointive 
officers  all  those  put  into  the  same  class  under  the  Oregon  plan 
except  the  attorney-general.  In  this  respect  the  Oregon  plan 
was  more  complete.  The  New  York  proposal  to  limit  the  power 
of  the  senate  over  executive  appointments,  combined  with  the 
extension  of  the  "merit"  system  in  the  civil  service,  was  cal- 
culated to  correct  the  most  serious  evil  resulting  from  the  exist- 
ence of  the  state  senate  with  its  peculiar  powers.  The  Oregon 
proposal  to  abolish  the  senate  was  bolder  and,  taken  in  connec- 
tion with  the  proposals  to  increase  the  legislative  authority  of 
the  governor,  seems  under  existing  conditions  to  be  preferable. 

1  For  a  detailed  account  of  the  work  of  the  New  York  Convention,  see  the 
American  Year  Book  for  1915,  pp.  87-94.  The  New  York  plan  of  1915,  like  the 
Oregon  plan  of  1911,  failed  of  adoption  by  the  people. 


THE  FURTHER  REFORM  OF  STATE  GOVERNMENT    475 

The  New  York  plan  for  the  consolidation  of  executive  depart- 
ments was  excellent  so  far  as  it  went,  but  it  might  well  have  gone 
further.  In  a  great  state  like  New  York,  however,  no  such  far- 
going  consolidation  would  be  practicable  as  that  involved  in 
the  Oregon  plan  to  create  the  new  office  of  state  business  manager. 
The  New  York  budget  plan  was  more  carefully  worked  out  than 
that  of  the  Oregon  reformers,  and  the  provision  for  the  voting 
of  appropriations  not  included  in  the  executive  budget  by  special 
bills  after  the  executive  budget  should  have  been  disposed  of 
was  a  wise  safeguard  against  abuse  of  executive  power.  The 
New  York  plan  for  giving  the  governor  and  his  department  heads 
the  right  to  speak  in  the  legislature,  and  the  legislature  the  right 
to  question  the  governor  and  his  associates,  was  more  conserva- 
tive than  the  corresponding  feature  of  the  Oregon  plan.  The 
preservation  of  the  executive  veto  in  New  York,  except  in  the 
case  of  the  budget,  was  also  more  conservative  than  the  Oregon 
plan  of  abolishing  the  veto  and  conferring  upon  the  governor 
under  the  proxy  system  of  proportional  representation  an  exten- 
sive but  uncertain  power  to  vote  directly  upon  all  matters  of 
proposed  legislation.  In  this  respect  the  New  York  plan  was 
undoubtedly  superior  to  that  of  the  Oregon  reformers.  In 
general,  the  New  York  plan  was  more  carefully  worked  out  and 
betrays  a  greater  consideration  for  the  exigencies  of  practical 
politics  than  that  of  the  Oregon  reformers,  but  their  underlying 
principles  are  the  same.  Both  alike  may  be  better  described 
as  plans  for  the  further  development  of  the  American  principle 
of  the  division  of  powers  in  the  government  of  the  states  than  as 
plans  for  the  introduction  of  the  cabinet  system. 

The  superiority  of  the  Oregon  plan,  and  of  the  New  York  plan 
as  far  as  it  went,  over  that  of  the  Socialists  is  manifest.  The 
short  ballot,  the  better  provision  for  the  employment  of  expert 
administrators,  the  clearer  recognition  of  the  need  for  improve- 
ment in  administrative  and  legislative  methods,  the  arrangements 
for  a  more  effective  control  of  appropriations,  the  more  intelligent 
conception  of  the  function  of  the  governor  in  the  government 
of  the  states,  in  short,  the  more  rational  separation  of  politics 
from  administration,  and  in  general  the  more  scientific  applica- 
tion of  the  old  American  principle  of  the  division  of  powers : 
these  were  the  decisive  advantages  of  the  New  York  and  Oregon 


476       STATE  GOVERNMENT  IN  UNITED  STATES 

plans.  Each  plan  had  its  own  peculiar  shortcomings.  The 
York  plan  contains  nothing  like  those  early  features  of  the  Oregon 
plan  which  were  intended  to  facilitate  the  direct  control  of 
governmental  operations  by  the  electorate.  Undoubtedly  this 
omission  helped  to  defeat  the  New  York  plan,  when  submitted 
to  the  people,  for  there  was  a  popular  feeling  that  the  great  powers 
which  it  was  proposed  to  confer  upon  the  governor  would  make 
him  dangerously  powerful,  unless  he  were  subjected  to  a  more 
direct  responsibility  to  the  people  than  results  from  biennial 
elections  alone.  Doubtless  the  direct  popular  initiative,  as  it 
exists  in  Oregon,  is  too  easily  and  too  frequently  used.  Probably 
all  the  good  results  to  be  expected  from  it  in  the  long  run  could  be 
obtained  if  there  were  more  adequate  safeguards  to  prevent  its 
inconsiderate  use.  Yet  there  are  distinct  advantages,  as  has 
already  been  pointed  out,  to  be  derived  from  the  existence  of  pro- 
cedure for  the  direct  initiation  by  the  people  of  certain  kinds  of 
measures.  The  direct  popular  referendum,  though  little  used, 
undoubtedly  is  a  valuable  instrument  of  popular  government, 
perhaps  even  more  on  account  of  the  effect  it  produces  upon 
the  general  atmosphere  of  legislation  than  on  account  of  its 
tangible  results.  The  recall,  also,  if  confined  to  political  officers, 
especially  if  they  are  elected  for  reasonably  long  terms,  should 
prove  to  be  a  valuable  instrument  for  similar  reasons. 

The  Oregon  plan  as  a  whole,  whatever  may  be  thought  of  the 
arrangements  for  direct  action  by  the  electorate,  was  clearly 
immature.  When  the  later  features  of  the  plan  are  taken  into 
consideration,  this  is  most  evident.  The  proposal  to  abolish  the 
executive  and  judicial  vetoes  was  not  justified  by  the  experience 
of  Oregon.  The  abolition  of  the  executive  veto  was  indeed 
wholly  inconsistent  with  the  general  tendency  of  the  Oregon  plan 
to  increase  the  power  of  the  governor.  The  complete  abolition 
of  the  judicial  veto  would  of  course  be  impossible  without  an 
amendment  to  the  Federal  Constitution.  If  such  an  amend- 
ment were  adopted,  as  advocated  by  some  radicals,  the  most 
convenient  mode  of  maintaining  the  supremacy  of  the  national 
government  within  its  constitutional  sphere  would  be  destroyed. 
If  the  abolition  of  the  judicial  veto  were  confined  to  the  implied 
power  to  veto  measures  in  conflict  with  the  state  constitution, 
the  effect  under  the  conditions  that  exist  in  Oregon  would  not 


THE  FURTHER  REFORM  OF  STATE  GOVERNMENT    477 

be  very  Important.  In  fact  the  People's  Power  League  has  not 
submitted  to  the  people  of  Oregon  any  specific  proposal  for  the 
abolition  of  the  judicial  veto.  That  part  of  the  plan  was  never 
worked  out.  The  immaturity  of  the  Oregon  plan,  as  worked  out, 
is  clearest  in  the  case  of  the  proposals  for  proportional  representa- 
tion. Three  different  schemes  were  submitted  to  the  people  at 
three  successive  general  elections.  Apparently  the  reformers 
did  not  know  what  they  wanted.  It  is  not  surprising  that  the 
people  of  Oregon  lost  confidence  in  the  People's  Power  League. 


IV 

THE  OUTLOOK  FOR  FURTHER  REFORM 

The  soundness  of  the  original  principles  of  state  government, 
as  understood  by  the  Jeffersonian  republicans,  has  been  demon- 
strated by  the  experience  of  more  than  a  century.  Popular 
control  of  the  constitutions  and  government  of  the  states  is  now 
more  firmly  established,  the  division  of  powers  is  universally  more 
effective,  than  in  the  beginning.  Both  the  democratization  of 
the  forms  of  government  and  the  redivision  of  powers  have  made 
the  state  governments  better  instruments  for  the  service  of  the 
people.  But  in  most  states  popular  control  can  be  made  more 
complete  than  it  is  now,  and  in  all  the  division  of  powers  can  be 
made  much  more  effective. 

More  complete  popular  control  of  government  can  be  brought 
about  in  many  states  by  the  adoption  of  the  referendum,  ini- 
tiative, and  recall.  But  too  much  reliance  should  not  be  placed 
on  these  devices,  and  their  use  should  not  be  made  too  easy. 
The  procedure  for  direct  legislation  by  the  electorates  should  be 
subject  to  such  safeguards  as  may  be  necessary  in  order  to  pre- 
vent the  electorates  from  usurping  non-legislative  powers, 
which  they  are  not  fitted  to  exercise,  and  to  insure  due  delibera- 
tion in  the  use  of  the  powers  which  may  properly  be  granted  to 
them.  In  most  states,  however,  what  is  most  needed  to  bring 
about  complete  popular  control  of  government  is  the  simplifica- 
tion of  the  existing  forms  of  government.  A  shorter  ballot,  more 
convenient  methods  of  nomination  of  elective  officers,  the  aboli- 
tion of  artificial  electoral  districts,  more  effective  regulation  of 


478       STATE  GOVERNMENT  IN  UNITED  STATES 

the  processes  by  which  the  opinion  of  the  electorate  is  formed: 
these  are  the  reforms  that  offer  the  most  promise.  The  removal 
of  non-political  officers  from  the  elective  to  the  appointive  class, 
the  consolidation  of  separate  legislative  chambers  into  a  single 
house,  the  election  of  representatives,  at  least  those  from  populous 
urban  districts,  by  some  form  of  proportional  representation 
instead  of  by  the  prevailing  general  ticket  or  single  district 
systems,  the  abolition  of  official  primary  elections  for  the  nomina- 
tion of  partisan  candidates  and  the  substitution,  in  cases  where 
proportional  representation  is  not  suitable,  of  some  form  of  pref- 
erential voting  at  the  general  election,  the  payment  by  the 
state  of  a  larger  share  of  the  necessary  cost  of  campaigns  and 
elections,  and  the  stricter  regulation  of  the  use  of  money  by  can- 
didates and  parties :  these  are  some  of  the  means  by  which  the 
above  reforms  seem  most  likely  to  be  accomplished. 

The  greatest  defect  in  the  government  of  the  states  has  always 
been  the  abuse  of  power  by  the  legislatures.  After  the  experience 
of  more  than  a  century  it  should  be  clear  that  this  defect  cannot 
be  cured  merely  by  increasing  the  constitutional  limitations 
upon  legislative  powers  and  procedure.  It  is  in  the  organiza- 
tion of  the  legislature  itself  and  in  the  readjustment  of  the  rela- 
tions between  the  legislature  and  the  coordinate  departments  of 
government  that  the  best  hope  for  the  future  lies.  The  history 
of  the  constitutional  convention  shows  how  a  legislative  body  may 
best  be  organized.  The  history  of  the  growth  of  executive  and 
judicial  independence,  of  the  separation  of  politics  from  adminis- 
tration, of  the  rise  of  the  political  influence  of  the  governor  and 
of  the  influence  of  the  non-political  expert  in  administration, 
shows  how  the  relations  between  the  legislature  and  the  co- 
ordinate departments  may  best  be  adjusted.  Indeed  the  greatest 
promise  for  the  future  lies,  not  in  further  changes  in  the  forms 
of  government,  but  in  the  further  redivision  of  powers.  Addi- 
tional checks  upon  the  authority  of  the  legislatures  are  needed. 
A  better  balance  between  the  departments  must  be  established 
by  further  strengthening  both  the  executive  department  and 
the  judiciary. 

The  strengthening  of  the  executive  seems  most  likely  to  be 
accomplished  in  two  ways,  by  the  further  development  of  execu- 
tive leadership  in  legislation  and  by  the  further  reorganization 


THE  FURTHER  REFORM  OF  STATE  GOVERNMENT    479 

of  state  administration.  The  more  general  use  of  administrative 
agencies  for  gathering  information  upon  which  legislation  is  to 
be  based  and  in  the  preparation  of  legislative  measures,  the  estab- 
lishment of  closer  relations  between  the  principal  executive  officers 
and  the  legislature,  the  further  development  of  the  executive 
veto,  and  above  all  the  introduction  of  the  executive  budget : 
these  are  the  most  promising  means  by  which  executive  leadership 
in  legislation  may  be  further  developed.  The  extension  of  the 
"merit"  system,  the  improvement  of  the  methods  of  depart- 
mental organization,  the  further  centralization  and  integra- 
tion of  administrative  organization  hi  general,  the  development 
of  administrative  tribunals,  such  as  the  public  service  commis- 
sions and  other  rule-making  bodies,  and  the  wider  recognition 
of  the  expert  in  the  business  of  government :  these  are  the  most 
promising  means  of  administrative  reform.  The  proposals  of 
the  New  York  constitutional  convention  of  1915  for  the 
strengthening  of  the  executive,  both  on  the  legislative  side  by  the 
establishment  of  the  budget  system1  and  on  the  administrative 
side  by  the  consolidation  of  boards  and  commissions  and  the 
creation  of  an  executive  cabinet,  indicate  the  lines  upon  which 
the  further  strengthening  of  the  executive  may  be  expected  to 
proceed.  The  New  York  proposals  for  municipal  and  county 
"home  rule"  and  for  the  delegation  of  broader  legislative  powers 
in  local  matters  to  the  municipal  governments  suggest  further 
means  of  relieving  the  legislatures  from  the  demoralizing  burden 
of  special  legislation. 

The  judicial  branch  of  the  state  governments  is  that  which  has 
hitherto  given  the  most  acceptable  service.  In  most  states, 
however,  the  organization  of  the  courts  and  the  management  of 
judicial  business  is  by  no  means  satisfactory,  and  the  exercise 
of  the  power  of  judicial  review  of  legislative  and  administrative 
acts  too  often  imposes  an  undesirable  burden  upon  the  judiciary. 
In  many  states  the  development  of  better  methods  of  legislation 
and  of  a  more  competent  administrative  system  would  go  far 
to  relieve  the  strain  which  legislative  and  administrative  incom- 
petence now  throws  upon  the  judicial  system.  In  the  administra- 

1  The  best  of  the  recent  plans  for  an  executive  budget  is  that  reported  by  the 
Maryland  Economy  and  Efficiency  Commission  and  submitted  to  the  people  of 
that  state  in  1916. 


480       STATE  GOVERNMENT  IN  UNITED  STATES 

tion  of  justice  as  well  as  in  other  branches  of  administration,  the 
most  promising  reforms  seem  to  be  those  designed  to  eliminate 
political  influences,  such  as  the  adoption  of  better  methods  of 
selecting  judges,  and  to  promote  economy  and  efficiency,  such 
as  the  further  centralization  and  integration  of  judicial  organiza- 
tion and  the  grant  to  the  courts  of  more  power  to  regulate  judicial 
procedure.  The  proposals  of  the  New  York  convention  of  1915 
for  judicial  reform  were  much  less  courageous  than  those  for  the 
reform  of  the  executive,  but  so  far  as  they  went  they  indicate  the 
lines  upon  which  further  reform  may  be  expected  to  proceed. 

"Some  men,"  wrote  Jefferson,1  several  years  after  his  final 
retirement  from  public  life,  "look  at  constitutions  with  sancti- 
monious reverence,  and  deem  them  like  the  ark  of  the  covenant, 
too  sacred  to  be  touched.  They  ascribe  to  the  men  of  the 
preceding  age  a  wisdom  more  than  human,  and  suppose  what 
they  did  to  be  beyond  amendment.  I  knew  that  age  well; 
I  belonged  to  it,  and  labored  with  it.  It  deserved  well  of  its 
country.  It  was  very  like  the  present  but  without  the  experience 
of  the  present ;  and  forty  years  of  experience  in  government  is 
worth  a  century  of  bookreading ;  and  this  they  would  say  them- 
selves were  they  to  rise  from  the  dead.  I  am  certainly  not  an 
advocate  for  frequent  and  untried  changes  in  laws  and  consti- 
tutions. I  think  moderate  imperfections  had  better  be  borne 
with ;  because,  when  once  known,  we  accommodate  ourselves 
to  them  and  find  practical  means  of  correcting  their  ill  effects. 
But  I  know  also  that  laws  and  institutions  must  go  hand  in  hand 
with  the  progress  of  the  human  mind." 

1  Thomas  Jefferson  to  Samuel  Kercheval,  July  12,  1816. 


APPENDIX 

A  Selected  List  of  References  for  the  Study  of  State  Government l 

A.   BIBLIOGRAPHIES. 

Reece,  Ernest  J.    State  Documents  for  Libraries.    Univ.  of  111. 
Bulletin,  xii,  36.    Urbana,  1915. 

The  best  general  guide  to  the  official  publications  of  the  states. 
Bowker,  R.  R.    State  Publications ;  a  provisional  list  of  the  official 
publications  of  the  several  states  of  the  United  States  from  their 
organization.    N.  Y.  Publishers'  Weekly,  1002-1908. 

The  only  approximately  complete  check-list  of  state  documents. 
U.  S.  Library  of  Congress.     Monthly  List  of  State  Publications. 
Washington,  1910-. 

The  most  complete  list  of  current  state  publications. 
American    Historical    Association.    Annual     Reports,    1900-1911; 
Reports  of  Public  Archives  Commission  on  official  literature  of  a 
large  number  of  states.    Washington,  1900-1911. 

The  best  source  of  information  on  the  archives  and  manuscript 
records  of  the  states. 

Public  Affairs  Information  Service  Bulletin.    White  Plains,  N.  Y., 
1914-. 

A  current  record  and  description  of  all  literature  relating  to  public 
affairs. 

Hasse,  A.  R.    Index  of  Economic  Material  in  Documents  of  the  States 
of  the  United  States.     Carnegie  Institution,  Washington,  1907-. 

An  index  of  such  material  from  1789.    To  1915,  eleven  volumes 
on  eleven  of  the  principal  states  had  appeared. 
Channing,  Edward,  Hart,  A.  B.,  and  Turner,  F.  J.     Guide  to  the 
Study  and  Reading  of  American  History.     Boston,  1912. 

Contains  the  best  selected  lists  of  public  records  and  documents 
and  secondary  works  relating  to  the  history  and  government  of  the 
states. 

McLaughlin,  A.  C.,  and  Hart,  A.  B.,  editors.    Cyclopedia  of  American 
Government.     3  vols.    N.  Y.,  1914. 

Contains  selected  lists  of  references  appended  to  the  several 
articles  relating  to  state  government  and  administration. 

1  References  cited  in  the  text  or  in  the  foot-notes  are,  for  the  most  part, 
omitted  from  this  list. 

2  l  481 


482  APPENDIX 

The  American  Year  Book.    New  York,  1910-. 

Contains  selected  lists  of  references  on  the  current  history  and 
activities  of  the  state  governments. 

B.  THE  STATE  CONSTITUTIONS. 

Thorpe,   F.   N.    The   Federal   and   State   Constitutions,   Colonial 

Charters,  and  other  Organic  Laws  of  the  States,  Territories,  and 

Colonies  now  or  heretofore  forming  the  United  States  of  America. 

7  vols.    Washington,  1909. 
The  latest  and  most  complete  compilation  of  the  state  constitu- 

tions. 
N.  Y.  State  Constitutional  Convention  Commission.    Index  Digest 

of  State  Constitutions.    N.  Y.,  1915. 

An  excellent  digest  of  the  state  constitutions  at  the  beginning  of 

1914.    For  subsequent  amendments  to  the  state  constitutions, 

see  The  American  Year  Book. 
Stimson,  F.  J.    Law  of  the  Federal  and  State  Constitutions  of  the 

United  States.     Boston,  1908. 
Contains  a  digest  of  the  state  constitutions,  which,  though  older 

than  the  above,  is  still  useful. 

C.  THE  NATION  AND  THE  STATES. 

Willoughby,  W.  W.    The  American  Constitutional  System.    N.  Y., 
1904. 

The  best  general  statement  of  the  constitutional  position  of  the 
states  in  the  Union. 

Willoughby,  W.  W.    The  Constitutional  Law  of  the  United  States. 
2  vols.    N.  Y.,  1910. 

The  most  recent  and  complete  treatise  on  the  law  of  the  federal 
constitution. 

Cooley,  T.  M.    A  Treatise  on  the  Constitutional  Limitations  which 
rest  upon  the  Legislative  Power  of  the  States  of  the  American 
Union,    yth  ed.,  Boston,  1903. 
The  standard  treatise  on  the  law-making  powers  of  the  states. 

D.  THE  ORIGIN  AND  DEVELOPMENT  OF  THE  STATE  CONSTITUTIONS. 

The  Massachusetts  Declaration  of  Rights  of  1780.    Thorpe's  Con- 
stitutions, iii,  1888-1893. 

The  best  statement  of  the  original  principles  of  government. 
Jefferson's  Proposed  Constitution  for  Virginia,  1783.    The  Writings 
of  Thomas  Jefferson,  Ford's  ed.,  iii,  320-333. 

The  best  example  of  a  plan  of  government  constructed  upon  the 
original  principles. 
Dealey,  J.  Q.    Growth  of  American  State  Constitutions.    Boston, 


The  best  summary  of  the  constitutional  history  of  the  states. 
Merriam,  C.  E.    History  of  American  Political  Theories.    N.  Y., 
1003. 

The  best  general  account  of  the  development  of  American  political 
ideas. 


APPENDIX  483 

Ford,  H.  J.    The  Rise  and  Growth  of  American  Politics.    N.  Y., 
1898. 

A  brilliant  study  of  underlying  tendencies  in  American  politics. 
Smith,  J.  A.    The  Spirit  of  American  Government.    N.  Y.,  1907. 
An  able  study  of  underlying  tendencies  from  another   view- 
point. 

Croly,  H.    The  Promise  of  American  Life.    N.  Y.,  1909.    Progres- 
sive Democracy.    N.  Y.,  1914. 

These  two  volumes  together  furnish  the  most  systematic  and 
suggestive  interpretation  of  the  history  of  American  politics. 
E.   THE  WORKING  OF  THE  STATE  GOVERNMENTS. 

1.  General  Works. 

Hamilton,  A.,  Madison,  J.,  and  Jay,  J.    The  Federalist,     ist  ed., 
N.  Y.,  1788-1789. 

Contains  the  best  critical  study  of  the  state  governments  before 
the  adoption  of  the  federal  constitution  of  1787. 
Tocqueville,    A.    de.    Democracy    in   America.    2  vols.     ist   ed., 
1835-1840. 

Contains  the  most  brilliant  study  of  the  forms  and  spirit  of  state 
government  in  the  early  nineteenth  century. 

Bryce,  J.    The  American  Commonwealth.     2  vols.     ist  ed.,  1888 ; 
rev.  ed.,  1910. 

Contains  the  most  brilliant  study  of  the  forms  and  spirit  of  state 
government  at  the  close  of  the  century. 

2.  Parties  and  Elections. 

Cleveland,  F.  A.    Organized  Democracy.    N.  Y.,  1913. 

The  most  comprehensive  study  of  the  electorate  and  elections. 
Macy,  J.    Party  Organizations  and  Machinery.    Rev.  ed.,  N.  Y., 
1912. 

A  sympathetic  account  of  party  government. 

Ostrogorski,  M.    Democracy  and  the  Party  System  of  the  United 
States.    N.  Y.,  1910. 

An  unsympathetic  account  of  party  government. 
Ray,  P.  O.    Introduction  to  Practical  Politics  and  Political  Parties. 
N.Y.,i9i3. 

A  general  account  of  party  issues,  nominations  and  elections. 
Woodburn,  J.  A.    Political  Parties  and  Party  Problems  in  the  United 
States.     2d  ed.,  N.  Y.,  1914. 

Another  useful  description  of  party  issues  and  the  conduct  of 
campaigns. 

3.  The  State  Legislatures. 

Reinsch,  P.  S.    American  Legislatures  and  Legislative  Methods. 
N.  Y.,  1907. 

The  best  general  account  of  the  state  legislatures. 
Reed,  A.  Z.    The  Territorial  Basis  of  Government  under  the  State 
Constitutions.    N.  Y.,  1911. 
A  study  of  the  systems  of  representation  in  the  state  legislatures. 


484  APPENDIX 

Moore,  B .  F.  The  History  of  Cumulative  Voting  and  Minority  Repre- 
sentation in  Illinois,  1870-1908.  Urbana,  1909. 

A  study  of  the  partisan  representative  system  in  effect  in 
Illinois. 

Steffens,  Lincoln.    The  Straggle  for  Self-government.    N.  Y.,  1906. 
The  most  effective  of  the  studies  of  legislative  incompetence  and 
corruption,  published  during  the  "muck-raking"  period. 
American  Bar  Association.    Report  of  the  Committee  on  Noteworthy 
Changes  in  Statute  Law.     1915-. 

A  useful  annual  summary  of  new  legislation,  appearing  prior  to 
1915  in  the  form  of  an  appendix  to  the  Annual  Address  of  the 
President  of  the  Association. 

National  Association  of  State  Libraries  and  American  Association  of 
Law  Libraries.    Official  Index  to  State  Legislation.    N.  Y.,  1915-. 
A  subject  and  numerical  index,  digest,  and  record  of  all  bills 
and   resolutions   in    all    legislatures,   cumulated    and    corrected 
weekly. 
4.  The  State  Executives. 

Finley,  J.  H.,  and  Sanderson,  J.  F.  The  American  Executive  and  Ex- 
ecutive Methods.  N.  Y.,  1908. 

A  study  chiefly  of  the  presidency  and  of  the  office  of  governor. 
Fairlie,  J.  A.    Local  Government  in  County,  Town,  and  Village. 
N.  Y.,  1006. 

An  excellent  description  of  local  administrative  organization. 
Goodnow,  F.  J.    Principles  of  the  Administrative  Law  of  the  United 
States.    N.  Y.,  1905. 

The  best  general  account  of  administrative  organization  and  the 
rules  of  administrative  action. 

Mathews,  J.  M.  Principles  of  American  State  Administration. 
N.  Y.,  1917. 

The  latest  comprehensive  account  of  the  objects  and  methods  of 
administrative  action. 

U.  S.  Bureau  of  the  Census.  Financial  Statistics  of  States,  1915. 
Washington,  1916. 

A  full  exhibit  of  the  sources  of  state  revenues  and  of  the  nature  and 
amount  of  state  expenditures. 

The  Proceedings  of  the  Governors'  Conferences,  held  annually  since 
1908,  and  of  the  annual  meetings  of  the  various  associations  of 
state  officers  and  other  persons  interested  in  special  branches  of  state 
administration,  such  as  the  National  Tax  Association,  the  National 
Assembly  of  Civil  Service  Commissions,  the  National  Association 
of  Railway  Commissioners,  etc.,  contain  a  mass  of  useful  information 
concerning  the  activities  and  problems  of  the  administrative  depart- 
ments of  the  state  governments.  These  publications,  as  well  as  the 
official  reports  of  administrative  officers  and  departments,  are  listed 
in  the  Library  of  Congress'  Monthly  List  of  State  Publications, 
noted  above. 


APPENDIX  485 

5.  The  State  Judiciary. 

Baldwin,  S.  E.    The  American  Judiciary.    N.  Y.,  1905. 

The  best  general  account  of  the  judicial  systems  of  the  states. 
Pound,  Roscoe.    The  Place  of  Judge  Story  in  the  Making  of  American 
Law.    48  American  Law  Review,  676.    The  Administration  of 
Justice  in  the  Modern  City.     26  Harvard  Law  Review,  302. 

Suggestive  accounts  of  two  phases  hi  the  development  of  American 
law. 

Frankfurter,  Felix.  The  Constitutional  Opinions  of  Justice  Holmes. 
29  Harvard  Law  Review,  683. 

A  valuable  discussion  of    the  modern    doctrine    of    judicial 
review. 

Goodnow,  F.  J.  Private  Rights  and  Administrative  Discretion. 
Journal  of  the  American  Bar  Association,  October,  1916. 

A  valuable  discussion  of  the  modern  development  of  administra- 
tive law. 

American  Judicature  Society  to  Promote  the  Efficient  Administration 
of  Justice.  Bulletin.  Chicago,  1914. 

Contains  many  suggestive  articles  on  judicial  organization  and 
procedure. 

6.  The  Constitutional  Convention.     See  p.  394  n. 

7.  The  Initiative,  Referendum,  and  Recall. 

Beard,  C.  A.,  and  Schultz,  B.  E.  Documents  on  the  State-wide 
Initiative,  Referendum,  and  Recall.  N.  Y.,  1912. 

A  collection  of  source  materials  with  a  discriminating  introduc- 
tion. 

Lowell,  A.  L.  Public  Opinion  and  Popular  Government.  N.  Y., 
1912. 

Contains  a  critical  study  of  the  working  of  the  initiative  and 
referendum. 

Munro,  W.  B.,  ed.  The  Initiative,  Referendum,  and  Recall.  N.  Y., 
1912. 

A  collection  of  essays  on  different  sides  of  the  question,  including 
a  valuable  essay  by  the  editor. 

Wilcox,  D.  F.  Government  by  All  the  People,  or  the  Initiative, 
Referendum,  and  Recall  as  Instruments  of  Democracy.  N.  Y., 
1912. 

The  most  comprehensive  statement  of  the  case  for  direct  legisla- 
tion and  the  recall. 

Roe,  G.  E.    Our  Judicial  Oligarchy.    N.  Y.,  1912. 
A  statement  of  the  case  for  the  recall  of  judges. 
Ransom,  W.  L.     Majority  Rule  and  the  Judiciary.     N.  Y.,  1912. 

A  statement  of  the  case  for  the  recall  of  judicial  decisions. 
Root,  E.     Experiments  in  Government  and  Essentials  of  the  Consti- 
tution.    Princeton,  1913. 

A  statement  of  the  case  against  the  initiative,  referendum,  and 
recall. 


486  APPENDIX 

F.   THE  FURTHER  REFORM  OF  STATE  GOVERNMENT. 

In  addition  to  the  works  cited  in  the  text  or  in  the  foot-notes,  the  following 
are  the  most  useful. 

Roosevelt,  T.    Progressive  Principles.    N.  Y.,  1913. 

Contains  the  most  effective  presentation  of  the  progressive  plan 
of  reform,  consisting  of  speeches  delivered  during  the  campaigns  of 
1912. 

Root,  E.  Addresses  on  Government  and  Citizenship.  Cambridge, 
1916. 

Contains  the  most  effective  presentation  of  the  conservative  plan 
of  reform,  including  speeches  delivered  in  the  N.  Y.  State  Consti- 
tutional Convention  of  1915. 

New  York  Bureau  of  Municipal  Research.  Bulletins  69,  70,  and 
73,  entitled  respectively  Responsible  Government,  Budget  Legisla- 
tion in  Two  States,  and  Three  Proposed  Constitutional  Amend- 
ments for  the  Control  of  the  Purse.  N.  Y.,  1916. 

The  best  statement  of  the  case  for  the  executive  budget. 
The  American  Year  Book.    Articles  entitled  State  Government,  and 
Popular  Government  and  Current  Politics,  contain  descriptions  of 
the  principal  current  proposals  for  further  reform. 


INDEX 


Absent  voting,  237. 

Adams,  John,  Defence  of  the  Constitutions  oj 
the  United  States,  23  n;  on  equality,  22; 
on  rebellion,  33 ;  on  division  of  powers, 
65-67 ;  author  of  Massachusetts  constitu- 
tion, no;  on  representative  system,  241. 

Adams,  John  Quincy,  on  liberty,  25;  on 
division  of  powers,  60  n;  "Letter  of 
Menander,"  64  n. 

Addams,  Jane,  on  abuse  of  judicial  veto,  372. 

Administration,  decentralization  of,  281, 
284 ;  partisanship  in,  282 ;  judicial  control 
of,  283,  381-391 ;  reorganization  of,  285- 
287,  326,  391;  departments  of,  287-317, 
see  also  under  Militia,  Education,  etc.; 
disorganization  of,  317-319;  organiza- 
tion of,  319-325;  development  of  quasi- 
judicial  powers  of,  385 ;  ministerial  and 
discretionary  acts  of,  388-300;  reorgan- 
ization of,  conclusion  on,  478—479. 

Advisory  opinions,  judicial.  See  Opinions, 
advisory. 

Agger,  E.  E.,  The  Budget  Right  in  American 
Commonwealths,  314  n,  316  n,  334  n. 

Agriculture,  administration  of,  301-302. 

Alabama,  "Grandfather"  clause  in,  83; 
constitutional  amendment  in,  99;  limita- 
tion of  legislative  powers  in,  122;  reg- 
istered voters  in,  147 ;  unconstitutional 
laws  in,  374. 

Alaska,  woman  suffrage  in,  87. 

Amendment  of  constitutions,  methods  of, 
08-09,  135-136;  effect  of,  120-130;  work- 
ing of,-  394-400, 402—41 1 .  See  also  Conven- 
tion, constitutional,  and  Initiative,  pop- 
ular. 

American  Tobacco  case,  365. 

Appointment,  power  of,  in  original  states, 
51,  52,  54;  effect  of  restrictions  on,  113- 
114;  executive,  335-338;  effect  of  "merit" 
system  on,  341-342. 

Apportionment,  legislative,  methods  of,  242- 
244 ;  working  of,  244-248. 

Appropriations,  control  of,  in  colonies,  69 ; 
by  legislature,  331-333,  335  ;  by  executive, 
334 ;  under  Oregon  plan,  467 ;  under  New 
York  plan,  474 ;  conclusion  on,  479. 


Aristotle,  influence  of,  in  American  colonies, 
21 ;  on  kings  and  tyrants,  186. 

Arizona,  condition  of  admission  to  Union  of, 
8 ;  literacy  test  in,  85  n ;  woman  suffrage 
in,  87  n ;  popular  voting  in,  145 ;  regis- 
tered voters  in,  146 ;  legislative  organiza- 
tion in,  242  n ;  working  of  bicameral  sys- 
tem in,  266;  working  of  initiative  in,  442. 

Arkansas,  alien  suffrage  in,  85  n ;  listing  of 
voters  in,  215 ;  use  of  pardoning  power  in, 
392. 

Ashtabula,  proportional  representation  in, 
456,  463-464. 

Attorney-general,  duties  of,  315. 

Auditor,  state,  duties  of,  316. 

Austin,  John,  on  drafting  of  bills,  271  n. 

Australia,  official  ballot  in,  205. 

Ballot,  official,  introduction  of,  205 ;  Massa- 
chusetts form  of,  206 ;  New  York  form  of, 
207;  Mass.  v.  N.  Y.  form  of,  208-212; 
short,  see  Short  ballot. 

Barnes-Roosevelt  libel  case,  337. 

Barnett,  J.  D.,  The  Initiative,  Referendum, 
and  Recall  in  Oregon,  411  n. 

Beard,  C.  A.,  Readings  in  American  Govern- 
ment and  Politics,  278  n. 

Belmont,  Perry,  on  use  of  money  in  elections, 
230. 

Bentham,  influence  of,  in  America,  348. 

Bicameral  system,  in  original  legislatures, 
65-67 ;  reform  of,  88-89 ',  arguments  for, 
241-242;  working  of,  244-248,  264-266; 
conclusion  on,  453-454,  478. 

Bipartisan  system,  character  of,  179-182; 
prospect  for,  204 ;  working  of,  in  elections, 
213-215 ;  conclusion  on,  461-463. 

Blackstone,  influence  of,  in  America,  21,  348. 

Boss,  political,  definition  of,  186. 

Boss  rule,  working  of,  336-338,  341,  342. 

Bradford,  G.,  on  cabinet  system,  470. 

Bryan,  W.  J.,  on  patronage,  336  n ;  on  criti- 
cism of  Supreme  Court,  368. 

Bryce,  The  American  Commonwealth,  103  n., 
224  n;  on  American  parties,  208. 

Budget,  executive,  development  of,  334-335 ; 
under  commission  plan,  452 ;  under  Ore- 


487 


INDEX 


gon  plan,  467 ;    under  New  York  plan, 
474i  47S ;  conclusion  on,  479. 
Burke,  on  study  of  government  in  America, 
2i ;  Reflections  on  the  Revolution  in  France, 
30  n ;  definition  of  party  by,  100. 

Cabinet  system,  proposals  of,  under  Oregon 
plan,  467,  471 ;  under  other  plans,  468- 
470 ;  under  New  York  plan,  474,  475  ; 
conclusion  on,  479. 

Cabot,  R.  C.,  "The  Administration  of  Public 
Health,"  297  «. 

Calhoun,  J.  C.,  Disquisition  on  Government 
and  Discourse  on  the  Constitution  and  Gov- 
ernment of  the  United  States,  8  n ;  theory 
of  government  of,  68;  on  nominating 
conventions,  183. 

California,  literacy  test  in,  85  »;  woman 
suffrage  in,  87  n;  regulation  of  primary 
elections  in,  104 ;  limitations  of  legislative 
powers  in,  122 ;  county  home  rule  in,  132 ; 
popular  voting  in,  144 ;  party  enrollment 
in,  177;  non-partisan  primary  in,  200; 
registration  of  voters  in,  215;  limitations 
on  use  of  money  in  elections  in,  236; 
state  board  of  control  in,  295 ;  executive 
veto  in,  327,  329,  330;  civil  service  reform 
in,  340  n;  recall  of  judges  in,  375 ;  consti- 
tutional amendments  in,  403 ;  voting  on 
constitutional  amendments  in,  406;  ur- 
gency legislation  in,  418;  official  campaign 
bulletin  in,  422-424;  working  of  popular 
referendum  in,  426;  procedure  for  direct 
legislation  in,  437. 

Cambridge  Modern  History,  61  n. 

Campaign  bulletins,  official,  104,  238; 
official,  and  the  referendum,  421-424; 
and  the  initiative,  440. 

Campaign  funds,  growth  of,  229-230;  regu- 
lation of,  231-232. 

Carter,  Law,  its  Origin,  Nature  and  Growth, 
35  »,  378  n. 

Caucus,  in  original  states,  101 ;  in  legisla- 
tures, 263. 

Censors.    See  Council  of  censors. 

Charities,  administration  of,  292-296,  323. 

Checks  and  balances,  doctrine  of,  60-65. 

Chicago,  municipal  courts  in,  350. 

Childs,  R.  S.,  Short  Ballot  Principles,  161  n. 

Chipman,  Nathaniel,  Sketches  of  the  Prin- 
cipks  of  Government,  24  «,  30  n,  65  n ;  on 
bicameral  system,  67. 

Church,  and  state,  separation  of,  27. 

Cicero,  influence  of,  in  American  colonies,  21. 

Citizen,  definition  of,  31. 

Civil  rights.    See  Rights,  Civil. 

Civil  service,  extent  of,  338 ;  reform  of,  339- 
340;  working  of,  340-342;  reform  of, 


under  commission  plan,  452,  under  Ore- 
gon plan,  466,  under  New  York  plan,  474, 
conclusion  on,  478,  479. 

Civil  service  system,  for  election  officers,  217. 

Cleveland,  municipal  courts  in,  350. 

Clinton,  DeWitt,  influence  of,  on  state 
administration,  285. 

Codification,  demand  for,  348,  349;  results 
of,  353- 

Colorado,  woman  suffrage  in,  87  n ;  subsidy 
to  parties  in,  104,  238;  advisory  opinions 
in,  118  n;  legislative  referendum  in,  133; 
popular  voting  in,  144;  effect  of  equal 
suffrage  in,  154;  legislative  organization 
in,  242  n;  civil  service  reform  in,  340  n; 
judicial  procedure  in,  354  n;  recall  of 
judicial  decisions  in,  376;  working  of 
referendum  in,  423-424;  working  of 
initiative  in,  440. 

Colvin,  D.  L.,  The  Bicameral  Principle  in 
the  New  York  Legislature,  265  n,  266  n, 
33°  «.  331  «,  334  »• 

Commission  plan  of  government,  for  states, 
449-;454- 

Committee,  legislative,  privileges  of,  253, 
in  Massachusetts,  253—255,  in  general, 
256-258,  in  New  York,  250-261. 

Committee,  party,  organization  of,  160-170. 

Commons,  J.  R.,  Proportional  Representa- 
tion, 246  ». 

Compact,  social,  doctrine  of,  30-31. 

Compulsory  voting,  237. 

Confederacy,  Southern,  nature  of,  5 ;  veto 
power  in,  113;  cabinet  system  in,  468. 

Confederation,  Articles  of,  nature  of,  6. 

Connecticut,  adoption  of  original  constitu- 
tion in,  41 ;  original  division  of  powers  in, 
53,  54 ;  character  of  original  government 
of,  74;  literacy  test  in,  85  «;  constitu- 
tional amendment  in,  09;  legislative 
organization,  242  n,  244,  247 ;  civil  service 
reform  in,  340  n;  judicial  procedure  in, 
354  ». 

Constabulary,  state,  289. 

Constitution,  model,  prepared  by  Jefferson, 
741 

Constitutions,  original,  adoption  of,  40-41 ; 
revision  of ,  74,  110-120;  length  of,  124. 

Convention,  constitutional,  in  original  states, 
41.  58-59.  7i;  development  of,  92-04; 
present  use  of,  95-98;  growth  of  power 
of,  123-124;  present  status  of,  125-128; 
organization  of,  395—397 ;  partisanship  in, 
397 ;  procedure  in,  398 ;  working  of,  399- 
400 ;  conclusion  on,  478. 

Convention,  nominating,  origin  of,  lot— 102 ; 
organization  of,  167—169;  working  of, 
182-184;  failure  of,  186-188. 


INDEX 


489 


Cooley,  T.   M.,   Constitutional  Limitations, 

64  n,  362  n;  Michigan,  gi  n. 
Corporations,    regulation    and    control    of, 

305-307,  323;    supervision  of,  by  admin- 
istrative commissions,  387,  388. 
Corrections,  administration  of,  292—296. 
Corruption,  political,   nature  of,    220-221 ; 

difficulty  in  preventing,  224-227. 
Corwin,  E.  S.,  "The  Establishment  of  Judi- 
cial Review,"  356  n ;  "  Due  Process  of  Law 

before  the  Civil  War,"  361  n. 
Council,  executive,  in  original  states,  52,  54  ; 

abolition  of,  88;  effect  of,  113-114. 
Council  of  appointment,  in  New  York,  51 ; 

abolition  of,  90. 
Council  of  censors,  in  original  states,  56-58 ; 

working  of,  75-76;    abolition  of,  76-77; 

criticism  of,  78. 
Council  of  revision,  in  New  York,  52,  60; 

abolition  of,  in,  115. 
Court  of  errors,  in  New  York,  58,  60,  115. 
Coxe,  B.,  Judicial  Power  and  Unconstitutional 

Legislation,  61  n. 
Croly,  Herbert,  Progressive  Democracy,  122  n ; 

The  Promise  of  American  Life,  286  n. 

DalUnger,  F.  W.,  Nominations  to  Elective 
Office,  102  n. 

Dartmouth  College  case,  305. 

Davis,  H.  A.,  The  Judicial  Veto,  63  n,  357  n. 

Delegate  convention.  See  Convention,  nomi- 
nating. 

Delaware,  adoption  of  original  constitution 
in,  41  n ;  original  division  of  powers  in,  54 ; 
popular  election  of  governor  in,  89;  con- 
stitutional referendum  in,  97  n;  consti- 
tutional amendment  in,  98;  party  organ- 
ization in,  102 ;  executive  veto  in,  1 1 1 ; 
popular  voting  in,  144;  registered  voters 
in,  146;  legislative  organization  in,  242  n, 
247  n ;  unconstitutional  laws  in,  358. 

Democracy,  progress  of,  78. 

Departments,  executive,  organization  of, 
310-325. 

Dicey,  A.  V.,  Introduction  to  the  Study  of  the 
Law  of  the  Constitution,  30  n,  36  n,  71  n. 

Dickerson,  O.  M.,  The  Illinois  Constitutional 
Convention  of  1862,  128  w. 

Direct  primary.    See  Primary,  direct. 

Division  of  powers.    See  Powers,  division  of. 

Districts,  electoral,  system  of,  158-160; 
defects  of,  160-163. 

Dodd,  W.  F.,  The  Revision  and  Amendment  of 
State  Constitutions,  95  n,  96  »,  97  n,  98  n, 
394  *.  4<>3  n. 

Dougherty,  J.  H.,  Power  of  Federal  Judiciary 
over  Legislation,  63  n. 

Douglas,  Stephen  A.,  on  equality,  23. 


Dred  Scott,  case  of,  31. 
Dubois,  W.  E.  B,  "Social  Effects  of  Emanci- 
pation," 147  ». 

Economy   and   efficiency,   commissions  on, 

472-473- 
Education,  administration  of,  289-292,  322, 

323- 

Elections,  annual,  in  original  states,  59, 
generally  abandoned,  89;  popular,  of 
executives,  89-90,  of  judges,  90-91 ; 
majority  v.  plurality,  162-164 ;  conduct  of, 
213-215;  campaigning  before,  218-220; 
corrupt  practices  in,  220-221 ;  corrupt 
practices  acts,  in  England,  221—224,  ^ 
America,  227—232,  working  of,  233—235, 
further  development  of,  236-237,  con- 
clusion on,  464.  See  also  Primary  and 
Party,  political. 

Electorate,  nature  of,  in  original  states,  45— 
46;  democratization  of,  79-81,  85-88; 
growth  of  power  of,  129 ;  effect  of  suffrage 
qualifications  on,  143-146;  organization 
of,  158-160. 

Executive,  organization  of,  in  original  states, 
51—56;  popular  election  of,  89-91 ;  tenure 
of,  changes  in,  92 ;  disorganization  of,  280- 
281 ;  reorganization  of,  285-287,  317-319; 
popular  election  of,  effects  of,  320-321, 
conclusion  on,  478—479.  See  Governor, 
and  other  executive  officers  by  title, 
Administration,  Veto,  and  Commission, 
Oregon  and  New  York  plans. 

Expenditures,  state,  308-310. 

Fairlie,  J.  A.,  "The  State  Governor,"  389  n. 

Farrand,  Max,  The  Framing  of  the  Constitu- 
tion  of  the  United  States,  63  n. 

Federalist,  The,  on  partisanship,  99;  on 
veto  power,  330  n. 

Ferguson,  Maxwell,  State  Regulation  of  Rail- 
roads in  the  South,  387  n. 

Finance,  legislative  control  of,  331-335. 

Fiske,  John,  on  critical  period  in  American 
history,  107. 

Florida,  advisory  opinions  in,  118  n;  reg- 
istered voters  in,  146;  public  health 
administration  in,  299. 

Ford,  H.  J.,  on  cabinet  system,  469. 

Fox,  on  partisanship,  100. 

France,  electoral  system  of,  199;  cabinet 
system  in,  469. 

Franchise,  electoral,  theory  of,  155-158. 
See  Suffrage. 

Frankfurter,  Felix,  "Hours  of  Labor  and 
Realism  in  Constitutional  Law,"  379  n. 

Franklin,  on  division  of  powers,  67. 

Freund,  E.,  The  Polite  Power,  367  n;    The 


4QO 


INDEX 


Problem  of  Adequate    Legislative  Powers, 

373  »,  374  »• 

Frothingham,  L.  A.,  A  Brief  History  of  the 
Constitution  and  Government  of  Massachu- 
setts, 255  n,  381  n. 

Fry,  Elizabeth,  prison  reformer,  293. 

Georgia,  adoption  of  original  constitution  in, 
41  «;  original  right  to  vote  in,  45  n; 
original  division  of  powers  in,  54;  con- 
stitutional initiative  in,  58;  unicameral 
legislature  in,  66;  character  of  original 
government  of,  73;  reform  of  original 
constitution  of,  75;  "Grandfather" 
clause  in,  84 ;  popular  election  of  governor 
in,  90  n ;  constitutional  convention  in,  93 ; 
executive  veto  in,  HI;  judicial  veto  by 
jury  in,  116;  legislative  incapacity  in,  119; 
limitation  of  legislative  powers  in,  123. 

Germany,  electoral  system  of,  109;  cabinet 
system  in,  472. 

Gerrymander,  245. 

Gitterman,  "The  Council  of  Appointment  in 
New  York,"  oo  n. 

Godkin,  E.  L.,  "The  Decline  of  the  State 
Legislatures,"  272  n. 

Gompers,  Samuel,  on  use  of  money  in  elec- 
tions, 230. 

Goodnow,  F.  J.,  on  the  division  of  powers,  49 ; 
Politics  and  Administration,  49  n;  Princi- 
ples of  the  Administrative  Law  of  the  United 
States,  49 n,  170  n,  172  n,  386  n,  389  n; 
Social  Reform  and  the  Constitution,  367  n. 

Governor,  under  colonial  governments,  69; 
direct  popular  election  of,  80-91 ;  extension 
of  powers  of,  110—114;  original  powers  of, 
148,  281 ;  transformation  of  office  of,  282, 
327;  present  position  of,  317-319,  335, 
338,  341 ;  proposed  position  of,  under 
Oregon  plan,  466,  467,  under  New  York 
plan,  474,  conclusion  on,  479.  See  also 
Veto,  executive ;  Appointment,  power  of ; 
Pardon,  power  of;  Budget,  executive; 
and  Oregon  and  New  York  plans. 

"Grandfather"  clauses,  nature  of,  82-85; 
effect  of,  147-148. 

Granger  cases,  305. 

Grant,  election  of,  181. 

Great  Britain,  Australian  ballot  in,  205; 
corrupt  practices  act  of,  221-224;  cabinet 
system  in,  467. 

Greene,  E.  B.,  The  Provincial  Governor,  69  n. 

Haines,  C.  G.,  The  American  Doctrine  of 
Judicial  Supremacy,  61  n,  62  n,  63  n,  356, 
359  »• 

Haines,  Lynn,  The  Minnesota  Legislature, 
277  n. 


Hamilton,  on  the  party  system,  99  « 

Hanna,  Mark,  on  party  finance,  234. 

Harlan,  J.  M.,  on  the  police  power,  369. 

Harrington,  influence  of,  in  American  col- 
onies, 21  n. 

Hart,  A.  B.,  "The  Exercise  of  the  Suffrage," 
237  n. 

Harvester  cases,  365. 

Health,  public,  administration  of,  296-300, 
323,  325- 

Hearst,  W.  R.,  political  influence  of,  236. 

Hichborn,  F.,  Story  of  the  California  Legis- 
lature, 277  «. 

Hillquit,  Morris,  History  of  Socialism  in  the 
United  States,  455  ». 

Hoar,  G.  F.,  on  partisanship,  100. 

Hodges,  Governor,  on  drafting  of  bills,  271  n ; 
on  commission  plan,  453. 

Holcombe,  A.  N.,  "Direct  Primaries  and  the 
Second  Ballot,"  201  n. 

Holmes,  O.  W.,  on  the  police  power,  369 ;  on 
liberty  and  justice,  378. 

Home  rule,  development  of,  130-132 ;  con- 
clusion on,  479. 

Howard,  John,  prison  reformer,  293. 

Howe,  F.  C.,  Wisconsin,  an  Experiment  in 
Democracy,  273  n. 

Hughes,  C.  E.,  Message  to  N.  Y.  Legislature, 
103  n ;  on  direct  primary,  203 ;  investiga- 
tion into  political  expenditures  of  life 
insurance  companies  by,  275  «;  use  of 
veto  by,  330. 

Hume,  "Of  the  Original  Contract,"  30  n; 
on  right  of  revolution,  32;  "Of  Passive 
Obedience,"  32  ». 

Idaho,  woman  suffrage  in,  87  n;  popular 
voting  in,  144. 

Illinois,  woman  suffrage  in,  87  »;  develop- 
ment of  executive  veto  in,  113  «;  status 
of  constitutional  convention  in,  128; 
advisory  referendum  in,  135 ;  proportional 
representation  in,  138;  Australian  ballot 
in,  212;  legislative  committee  system  in, 
257;  administrative  agencies  in,  286; 
state  board  of  equalization  in,  320;  civil 
service  reform  in,  340  »;  use  of  judicial 
veto  in,  377 ;  organization  of  constitutional 
convention  in,  396;  working  of  conven- 
tion in,  399;  procedure  for  constitutional 
amendment  in,  409;  results  of  public 
opinion  law  in,  444;  cumulative  voting 
in,  456 ;  economy  and  efficiency  commis- 
sion in,  472. 

Impeachment,  provision  for,  in  original 
states,  51,  52,  55,  57!  cases  of,  342;  con- 
clusion, 343 . 

Indiana,  alien  suffrage  in,  85  n;    popular 


INDEX 


491 


voting  in,  144;  electoral  frauds  in,  216; 
volume  of  legislation  in,  240 ;  republican 
government  in,  300 ;  constitutional  amend- 
ments in,  403;  procedure  for  constitu- 
tional amendment  in,  409;  working  of 
constitutional  referendum  in,  410. 

Initiative,  popular,  definition  of,  130;  de- 
velopment of,  135-136;  use  of,  403,  404; 
working  of,  428-432  ;  criticism  of,  432- 
437 ;  improvement  of,  437-441 ;  limita- 
tions on,  441-443 ;  conclusion  on,  443-444, 
458,  464,  476,  477. 

Iowa,  legislative  referendum  in,  134 ;  repre- 
sentative system  in,  243;  illiteracy  in, 
290;  economy  and  efficiency  commission 
in,  472. 

Italy,  electoral  system  of,  109. 

Ivins,  W.  M.,  Machine  Politics  and  Money 
in  Elections  in  New  York  City,  184  n, 
218  n,  224  n. 

Jackson,  election  of,  181. 

Jacobs,  In  re,  366. 

Jameson,  J.  A.,  The  Constitutional  Conven- 
tion, 394  «. 

Jameson,  J.  F.,  "Did  the  Fathers  Vote ?" 
45  n;  " Origin  of  the  Standing  Committee 
System  in  American  Legislative  Bodies," 
259  n. 

Jay,  John,  author  of  New  York  constitution, 
no;  on  representative  system,  241. 

Jefferson,  Notes  on  Virginia,  23  n,  26  n; 
on  natural  rights,  24;  on  religious  dis- 
establishment, 28 ;  on  rebellion,  32 ; 
on  republican  form  of  government,  38; 
on  original  constitution  of  Virginia,  40,  50, 
55>  56,  71  n ;  on  Virginia  suffrage  qualifica- 
tions, 45,  79;  on  suffrage,  46;  on  the 
division  of  powers,  48 ;  on  the  referendum, 
59 ;  on  checks  and  balances,  60 ;  on  power 
of  judiciary,  64 ;  on  bicameral  system, 
66,  67 ;  model  constitution  prepared  by, 
74 ;  on  revision  of  constitutions,  95 ; 
on  system  of  legislative  supremacy,  106; 
on  representative  system,  241 ;  on  prog- 
ress in  government,  480. 

Jeffersonian  principles  of  state  government, 
importance  of,  74 ;  soundness  of,  477. 

Johnson,  L.  J.,  The  Initiative  and  Referendum, 
an  Effective  Ally  of  Representative  Govern- 
ment, 438  n. 

Jones,  C.  L.,  Statute  Law  Making  in  the 
United  States,  258  n. 

Judges,  popular  election  of,  91,  working  of, 
351 ;  recall  of,  375. 

Judicial  decisions,  recall  of,  375-376. 

Judicial  review  of  constitutionality  of  legis- 
lation. See  Veto,  Judicial. 


Judiciary,  organization  of,  in  original  states, 
51-56,  61;  tenure  of,  changes  in,  92; 
organization  of,  340-352 ;  procedure  of, 
352-355;  working  of,  in  Massachusetts, 
380-381 ;  reform  of,  conclusion  on,  479- 
480;  control  of  administration  by,  see 
Administration,  judicial  control  of;  con- 
trol of  legislation  by,  see  Veto,  judicial. 

Jury,  as  a  political  institution,  71—72 ;  exer- 
cise of  judicial  veto  by,  116-118;  trial 
by,  354-355- 

Justice,  administration  of,  346-347. 

Kales,  A.  M.,  Unpopular  Government,  160  »; 
on  cabinet  system,  469. 

Kansas,  racial  discrimination  in,  81 ;  alien 
suffrage  in,  85  «;  woman  suffrage  in, 
86  n,  87 ;  legislative  referendum  in,  133 ; 
the  recall  in,  137,  138;  legislative  in- 
competence in,  271 ;  civil  service  reform 
in,  340  n. 

Kentucky,  manhood  suffrage  in,  80 ;  woman 
suffrage  in,  86 ;  popular  election  of  gover- 
nor in,  90;  executive  veto  in,  in. 

Koehler  &  Lange  r.  Hill,  374  n. 

Labor  legislation,  administration  of,  300, 
323-325- 

LaFollette,  Robert  M.,  on  the  lobby,  277. 

Lamb,  Congressman,  on  use  of  money  in 
elections,  231. 

Law,  reign  of,  34-36 ;  development  of,  347— 
349;  due  process  of,  360-362. 

Legislation,  methods  of,  reform  of,  267-268; 
emergency,  and  the  referendum,  415-418; 
direct,  see  Initiative. 

Legislature,  supremacy  of,  in  original 
states,  55,  61,  68-70,  73,  reaction 
against,  106-110;  powers  of,  growth  of 
limitations  on,  110-122;  bicameral  sys- 
tem in,  241-242;  apportionment  of 
representatives  in,  242-244;  procedure 
in,  248-252 ;  organization  of,  252-261 ; 
partisanship  in,  263-264;  work  of, 
classification  of,  268-272 ;  powers  of, 
further  limitation  of,  272-274,  278-279; 
control  of  appropriations  by,  331-335; 
delegation  of  powers  by,  382 ;  reform  of, 
conclusion  on,  478-479.  See  also  Bi- 
cameral system,  Apportionment,  and 
Proportional  representation. 

Liberty,  idea  of,  at  Revolution,  24-28; 
idea  of,  change  in,  378-379. 

Lieber,  Francis,  Miscellaneous  Writings,  24  n ; 
Civil  Liberty  and  Self  Government,  26  n ; 
Principles  of  Political  and  Legal  Her- 
meneutics,  35  n ;  on  the  party  system, 
100 ;  Manual  of  Political  Ethics,  150  n; 


492 


INDEX 


"Reflections  on  the  Present  Constitution 
of  New  York,"  392  ». 

Lincoln,  on  nature  of  Union,  3-4,  7;  sus- 
pension of  the  privilege  of  the  writ  of 
habeas  corpus  by,  17;  on  natural  rights, 
23;  Address  at  Cooper  Union,  43  n; 
election  of,  181. 

Lincoln,  C.  Z.,  Constitutional  History  of 
New  York,  90  n,  1 1 1  n. 

Loan  Association  v.  Topeka,  362. 

Lobby,  power  of,  270;  regulation  of,  274- 
277. 

Lochner  v.  N.  Y.,  368. 

Locke,  influence  of,  in  American  colonies,  21 ; 
on  liberty,  25 ;  on  doctrine  of  the  social 
compact,  30;  on  the  division  of  powers, 
48. 

Louisiana,  constitutional  referendum  in, 
97  n;  limitation  of  legislative  powers  in, 
122;  representative  system  in,  243 ;  civil 
service  reform  in,  340  n ;  unconstitutional 
laws  in,  358;  constitutional  amendments 
in,  403. 

Lowell,  A.  L.,  The  Government  of  England, 
224  n;  on  influence  of  party  upon  legisla- 
tion, 263 ;  Public  Opinion  and  Popular 
Government,  403  n,  413  n,  417  n,  427  n. 

Luetscher,  G.  D.,  Early  Political  Machinery 
in  the  United  States,  102  n. 

Macdonald,  J.  R.,  Socialism  and  Government, 
459  »,  460  ». 

Machiavelli,  theory  of  government  of,  67. 

Mack,  Norman  E.,  on  use  of  money  in 
elections,  230. 

Madison,  on  republican  form  of  government, 
37,  38 ;  on  the  division  of  powers,  49,  50, 
56;  on  checks  and  balances,  59,  60;  on 
council  of  censors,  76;  on  the  party  sys- 
tem, 99  n. 

Magruder,  F.  A.,  Recent  Administration  in 
Virginia,  128  n,  147  «. 

Maine,  negro  suffrage  in,  81 ;  literacy  test  in, 
85  «;  constitutional  amendment  in,  99; 
advisory  opinions  in,  118  n. 

Maine,  Sir  H.  S.,  Popular  Government,  150  n. 

Mann,  Horace,  influence  of,  on  state  ad- 
ministration, 285 ;  administrative  methods 
of,  323- 

Marbury  v.  Madison,  389. 

Maryland,  established  church  in,  27 ;  doc- 
trine of  non-resistance  in,  33 ;  adoption  of 
original  constitution  in,  41  n;  property 
qualifications  for  officeholders  in,  47; 
division  of  powers  in,  48,  54;  racial 
discrimination  in,  81 ;  popular  election 
of  governor  in,  90;  constitutional  amend- 
ment in,  98 ;  representative  system  in,  243 ; 


anti-lobby  act  of,  976;  plan  for  executive 
budget  in,  479  n. 

Massachusetts,  declaration  of  rights,  24, 
42;  emancipation  of  slaves  in,  26;  reli- 
gious qualifications  for  office  in,  27;  dis- 
continuance of  public  support  of  religion  in, 
28;  adoption  of  original  constitution  in, 
41 ;  original  right  to  vote  in,  45 ;  prop- 
erty qualifications  for  office  holders  in, 
47 ;  original  division  of  powers  in,  52-53  ; 
constitutional  referendum  in,  58;  inde- 
pendence of  judiciary  in,  61 ;  special 
privileges  for  property  in,  66;  character 
of  original  government  of,  73 ;  extension 
of  suffrage  in,  80;  negro  suffrage  in,  80; 
literacy  test  in,  85 ;  reform  of  bicameral 
system  in,  88;  annual  elections  in,  89; 
tenure  of  judges  in,  91 ;  constitutional 
referendum  in,  97;  Australian  ballot  in, 
104 ;  system  of  checks  and  balances  in,  1 10 ; 
executive  veto  in,  no,  nr;  effect  of 
executive  veto  in,  114;  judicial  veto  in, 
114;  advisory  opinions  in,  115-118; 
limitation  of  legislative  powers  in,  120- 
122;  length  of  original  constitution  of, 
124;  popular  veto  in,  129;  municipal 
home  rule  in,  130;  state-wide  referendum 
in,  132,  135 ;  annual  elections  in,  136 ; 
popular  voting  in,  144 ;  registered  voters 
in,  146;  effect  of  literacy  qualification  in, 
151,  152;  electoral  districts  in,  159; 
majority  elections  in,  162 ;  legal  definition 
of  political  party  in,  166 ;  annual  election 
of  party  officials  in,  170;  legal  test  of 
party  affiliation  in,  176;  Australian 
ballot  in,  206,  208,  212;  corrupt  prac- 
tices act  of,  227,  232 ;  representative 
system  in,  243 ;  volume  of  legis- 
lation in,  249;  legislative  committee 
system  in,  253-255 ;  legislative  incapacity 
in,  271;  anti-lobby  act  of,  275-276; 
administrative  agencies  in,  286 ;  organiza- 
tion of  militia  in,  287 ;  district  police  in, 
289 ;  educational  organization  in,  291 ; 
public  health  administration  in,  298; 
labor  law  administration  in,  300;  regula- 
tion of  public  utilities  in,  307 ;  tax  reform 
in,  312—313;  departmental  organization 
in,  323,  324,  325;  appropriations  in,  332; 
state  employees  in,  338;  civil  service 
reform  in,  339;  "merit"  system  in,  342; 
judicial  tenure  in,  351,  380-381 ;  unconsti- 
tutional laws  in,  358;  working  of  judicial 
system  in,  380-381 ;  advisory  opinions  in, 
381 ;  organization  of  constitutional  con- 
vention in,  396;  non-partisan  elections 
for,  397 ;  working  of  convention  in,  399 ; 
proposed  procedure  for  direct  legislation 


INDEX 


493 


in,  438;   stability  of  original  constitution 
of,  447 ;  economy  and  efficiency  commis- 
sion in,  472. 
McCarthy,    Charles,    The   Wisconsin   Idea, 

273  »• 

McLaughlin,  A.  C.,  The  Courts,  the  Constitu- 
tion and  Parties,  63  n. 

Meader,  L.  H.,  "The  Council  of  Censors, " 
77  n. 

Merriam,  C.  E.,  Primary  Elections,  103  «. 

Meyer,  E.,  Nominating  Systems,  188  w. 

Michigan,  constitutional  conventions  in,  96 ; 
legislative  referendum  in,  135;  corrupt 
practices  in,  214;  working  of  bicameral 
system  in,  264 ;  state  tax  commission  in, 
315;  administrative  reorganization  in, 
326  n;  appropriations  in,  331. 

Militia,  state,  287-288. 

Mill,  J.  S.,  Representative  Government,  150  n; 
on  drafting  of  bills,  274;  on  government, 
401 ;  on  proportional  representation,  456, 

459- 

Milton,  influence  of,  in  American  colonies, 
21 ;  on  liberty,  25. 

Minnesota,  negro  suffrage  in,  81 ;  popular 
voting  in,  144;  non-partisan  primary  in, 
200;  Australian  ballot  in,  212;  legislative 
organization  in,  242  n;  limitation  of 
judicial  veto  in,  377  n;  working  of  con- 
stitutional referendum  in,  410;  economy 
and  efficiency  commission  in,  472. 

Mississippi,  negro  disfranchisement  in,  82, 
83 ;  popular  election  of  judges  in,  91 ; 
constitutional  referendum  in,  96, 97  n ;  con- 
stitutional amendment  in,  99 ;  status  of 
constitutional  convention  in,  126;  popu- 
lar voting  in,  144;  unconstitutional  laws 
in,  374- 

Missouri,  alien  suffrage  in,  85  n;  constitu- 
tional conventions  in,  96 ;  advisory  opin- 
ions in,  118  n;  limitation  of  legislative 
powers  in,  122;  municipal  home  rule  in, 
131;  woman  suffrage  campaign  in,  152; 
corrupt  practices  act  of,  228;  unconstitu- 
tional laws  in,  358;  constitutional  amend- 
ments in,  403 ;  working  of  referendum  in, 
422,  426. 

Montana,  woman  suffrage  in,  87  n;  popular 
voting  in,  144;  woman  suffrage  campaign 
in,  152;  referendum  petitions  in,  419. 

Montesquieu,  influence  of,  in  American 
colonies,  a  i ;  on  liberty,  24 ;  on  the  divi- 
sion of  powers,  50. 

Moore,  B.  F.,  The  Supreme  Court  and  Uncon- 
stitutional Legislation,  357  n,  358  n,  360  n. 

Morey,  W.  C.,  "The  Genesis  of  a  Written 
Constitution"  and  "The  First  SUte 
Constitutions,"  54  »• 


Mugler  ».  Kansas,  370. 

Municipal  home  rule,  development  of,  130- 

132 ;   futher  development  of,  479. 
Munn  f.  111.,  363. 
Munro,  W.  B.,  The  Government  of  American 

Cities,  450  n;    on  the  commission  plan, 

451,  452. 

Nebraska,  alien  suffrage  in,  85  n;  woman 
suffrage  campaign  in,  152;  working  of 
constitutional  referendum  in,  410. 

Nevada,  woman  suffrage  in,  87  n;  popular 
voting  in,  144. 

New  Hampshire,  religious  qualifications  for 
office  in,  27 ;  doctrine  of  non-resistance  in, 
33 ;  adoption  of  original  constitution  in, 
41  n;  property  qualifications  for  office- 
holders in,  47 ;  original  division  of  powers 
m>  47i  S3  J  constitutional  referendum  in, 
58;  special  privileges  for  property  in,  66; 
negro  suffrage  in,  80 ;  literacy  test  in,  85  « ; 
constitutional  convention  in,  93 ;  execu- 
tive veto  in,  in;  advisory  opinions  in, 
115,  118  n;  majority  elections  in,  162  n; 
legislative  organization  in,  242  n ;  state 
highways  in,  304 ;  working  of  convention 
in,  399;  procedure  for  constitutional 
amendment  in,  409. 

New  Jersey,  religious  inequality  in,  28; 
adoption  of  original  constitution  in,  40  n ; 
woman  suffrage  in,  46;  original  division 
of  powers  in,  54 ;  extension  of  suffrage  in, 
80;  annual  elections  in,  89;  popular 
election  of  governor  in,  oo;  tenure  of 
judges  in,  91,  351 ;  party  organization  in, 
102  strengthening  of  executive  veto  in, 
112  limitation  of  legislative  powers  in, 
119  registration  of  voters  in,  217; 
representative  system  in,  243,  244,  247 ; 
organization  of  administration  in,  319; 
civil  service  reform  in,  340  n;  judicial 
procedure  in,  354  n;  unconstitutional 
laws  in,  358;  voting  on  constitutional 
amendments  in,  404 ;  economy  and  effi- 
ciency in,  472. 

New  Mexico,  condition  of  admission  to 
Union  of,  8;  referendum  petitions  in,  419. 

New  Republic,  The,  quoted,  180  n. 

New  York,  religious  inequality  in,  28 ;  adop- 
tion of  original  constitution  in,  41  n; 
division  of  powers  in  original  constitution 
of,  51-51;  council  of  revision  in,  58,  60; 
special  privileges  for  property  in,  66; 
character  of  original  government  of,  74 ; 
extension  of  suffrage  in,  80 ;  negro  suffrage 
in,  80 ;  reform  of  bicameral  system  in,  88 ; 
annual  elections  in,  89 ;  popular  election 
of  judges  id,  91;  constitutional  conven- 


494 


INDEX 


tions  in,  96-97;  party  organization  in, 
101-102;  regulation  of  primary  elections 
in,  104 ;  system  of  checks  and  balances  in, 
no;  veto  of  council  of  revision  in,  no, 
in;  strengthening  of  executive  veto  in, 
112 ;  development  of  judicial  veto  in,  115 ; 
limitation  of  legislative  powers  in,  119, 
121,  122;  legislative  referendum  in,  133, 
134;  popular  voting  in,  144;  registered 
voters  in,  146;  effect  of  manhood  suffrage 
in,  151-152;  electoral  districts  in,  159; 
legal  test  of  party  affiliation  in,  176;  party 
enrollment  in,  177;  Australian  ballot 
in,  207,  208,  212;  registration  of  voters 
in,  215;  political  use  of  saloons  in,  218; 
cost  of  campaign  publicity  in,  219 ;  corrupt 
practices  act  of,  227;  legislative  appor- 
tionment in,  244,  247 ;  volume  of  legisla- 
tive in,  249 ;  constitutional  limitations  on 
legislative  procedure  in,  251 ;  legislative 
committee  system  in,  260-263 ;  working 
of  bicameral  system  in,  265 ;  administra- 
tive agencies  in,  287 ;  educational  organ- 
ization in,  291;  penal  and  charitable 
administration  in,  296;  public  health 
administration  in,  299 ;  labor  law  adminis- 
tration in,  301 ;  agricultural  administra- 
tion in,  302;  administration  of  public 
works  in,  303 ;  regulation  of  public  utili- 
ties in,  307;  tax  reform  in,  312;  organiza- 
tion of  administration  in,  318 ;  educational 
department  in,  322 ;  departmental  organi- 
zation in,  325;  administrative  reorganiza- 
tion in,  326  n;  executive  veto  in,  327,  329, 
330;  appropriations  in,  333;  state  em- 
ployees in,  338;  civil  service  reform  in, 
339;  tenure  of  judges  in,  351 ;  codification 
foj  353 ;  judicial  veto  in,  357 ;  unconstitu- 
tional laws  in,  358;  recall  of  judicial  de- 
cisions in,  376;  use  of  judicial  veto  in, 
377;  organization  of  constitutional  con- 
vention in,  396 ;  procedure  in,  398 ;  work- 
ing of  convention  in,  399 ;  voting  on  con- 
stitutional amendments  in,  404 ;  economy 
and  efficiency  commission  in,  472. 

New  York  Bureau  of  Municipal  Research, 
publications  of,  on  state  government,  473  n. 

New  York  plan,  for  reform  of  state  govern- 
ment, 473-476;  conclusion  on,  479,  480. 

Nomination,  methods  of,  development  of, 
101—103 ;  further  reform  of,  198-201 ;  con- 
clusion on,  477.  See  Party,  political. 

Non-partisanship,  tendency  towards,  198- 
201 ;  under  commission  plan,  451 ;  in 
local  government,  462. 

North  Carolina,  admission  of,  to  Union,  4  n ; 
established  church  in,  27;  adoption  of 
original  constitution  in,  41  n;  original 


right  to  vote  in,  45  n;  property  qualifica- 
tions for  office  holders  in,  47 ;  original 
division  of  powers  in,  54;  special  privi- 
leges for  property  in,  66;  extension  of 
suffrage  in,  80;  "Grandfather"  clause  in, 
84;  reform  of  bicameral  system  in,  88; 
popular  election  of  governor  in,  90; 
no  executive  veto  in,  112;  popular  voting 
in,  144;  corporation  commission  in,  307. 

Northern  Securities  case,  365. 

Northwest  Territory,  exclusion  of  slavery 
from,  26. 

Oberholtzer,  E.  P.,  The  Referendum  in  Am- 
erica, 135  n. 

Office,  public,  property  qualifications  for,  in 
original  states,  47. 

Ohio,  racial  discrimination  in,  81 ;  executive 
veto  in,  in;  effect  of  manhood  suffrage 
in,  151-152;  electoral  districts  in,  161  n; 
Australian  ballot  in,  207,  210  n,  212 ;  char- 
acter of  offices  filled  by  election  in,  211  «; 
representative  system  in,  243,  244;  labor 
law  administration  in,  301 ;  agricultural 
administration  in,  303 ;  state  highways  in, 
304;  tax  inquisitor  law  in,  311 ;  equaliza- 
tion of  assessments  in,  314;  civil  service 
reform  in,  340  n;  limitation  of  judicial 
veto  in,  377;  constitutional  convention 
ini  397 ;  non-partisan  elections  for,  397 ; 
working  of  convention  in,  399 ;  voting  on 
constitutional  amendments  in,  406 ;  work- 
ing of  constitutional  referendum  in,  410; 
working  of  popular  referendum  in,  426. 

Oklahoma,  condition  of  admission  to  Union 
of,  9;  "Grandfather"  clause  in,  84;  con- 
stitutional conventions  in,  95  n;  length 
of  original  constitution  of,  124;  popular 
voting  in,  144;  legislative  apportionment 
in,  244  n;  educational  organization  in, 
292 ;  bank  deposit  guarantee  law  in,  306 ; 
working  of  constitutional  referendum  in, 
410. 

Opinions,  advisory,  by  judges,  in  Massa- 
chusetts, 53,  61;  effect  of,  118;  working 
of,  381. 

Oregon,  racial  discrimination  in,  81 ;  woman 
suffrage  in,  87  n ;  constitutional  initiative 
in,  99 ;  direct  primary  in,  103 ;  subsidy  to 
parties  in,  104;  limitation  of  legislative 
powers  in,  122;  legislative  referendum  in, 
133;  initiative  and  referendum  in,  136, 
403,  404;  the  recall  in,  137;  popular  vot- 
ing in,  144;  registered  voters  in,  146; 
party  enrollment  in,  177;  operation  of 
direct  primary  in,  188;  Australian  ballot 
in,  212;  corrupt  practices  act  of,  231; 
limitations  on  use  of  money  in  elections  in, 


INDEX 


495 


236;  official  campaign  bulletin  in,  238, 
422;  social  justice  in,  379;  voting  on  con- 
stitutional amendments  in,  405  ;  working 
of  popular  referendum  in,  414 ;  emergency 
legislation  in,  416;  working  of  initiative 
in,  431 ;  results  of  initiative  in,  443 ; 
popular  government  in,  457. 
Oregon  plan  for  reform  of  state  government, 

465-477- 
Orth,  S.  P.,  "Our  State  Legislatures,"  250  n. 

Paine,  Thomas,  on  natural  rights,  22 ; 
Rights  of  Man,  30  n ;  on  republican  form 
of  government,  39;  on  the  division  of 
powers,  48;  on  bicameral  system,  67. 

Pardon,  power  of,  in  original  states,  52,  54; 
power  of,  use  of,  392-393. 

Partisanship,  in  elections,  177,  181,  213-215; 
in  the  election  of  judges,  199,  351 ;  in  legis- 
lative bodies,  263-264;  in  administration, 
282,  336,  339;  in  constitutional  conven- 
tions, 309;  in  referendum  elections,  411; 
justification  of,  460-462 ;  conclusion  on, 
462-463. 

Party,  political,  organization  of,  101-103 ; 
legal  regulation  of,  103-104;  growth  of 
power  of,  137-139;  legal  definitions  of, 
165-167;  organization  of,  167-173;  affi- 
liation, tests  of,  173-176;  enrolment, 
figures  of,  177;  machine,  184-186;  organ- 
ization, further  reform  of,  202-204;  sys- 
tem, development  of,  09-101 ;  system, 
criticism  of,  208-209. 

Pennsylvania,  emancipation  of  slaves  in,  26 ; 
religious  toleration  in,  27;  adoption  of 
original  constitution  in,  40 ;  original  right 
to  vote  in,  44,  45;  original  division  of 
powers  in,  56;  council  of  censors  in,  57; 
unicameral  legislature  in,  66;  character 
of  original  government  of,  73;  reform  of 
original  constitution  of,  75 ;  abolition  of 
council  of  censors  in,  76;  popular  election 
of  governor  in,  89;  popular  election  of 
judges  in,  91 ;  constitutional  convention 
in,  93 ;  party  organization  in,  102 ;  work- 
ing of  legislative  supremacy  in,  106; 
executive  veto  in,  1 1 1 ;  strengthening  of 
executive  veto  in,  112;  limitation  of  legis- 
lative powers  in,  119;  status  of  consti- 
tutional convention  in,  128;  popular 
voting  in,  144;  effect  of  property  quali- 
fication in,  151-152  ;  volume  of  legislation 
in,  249 ;  state  constabulary  in,  289 ; 
public  health  administration  in,  299; 
labor  law  administration  in,  301 ;  agri- 
cultural administration  in,  303;  tax 
reform  in,  313  ;  departmental  organization 
in,  325;  executive  veto  in,  327,  329;  un- 


constitutional laws  in,  358;  organization 
of  constitutional  convention  in,  396; 
limited  voting  in,  456;  economy  and  effi- 
ciency commission  in,  472. 

People  v.  Marx,  371. 

People's  Power  League,  introductory  letter 
of,  466. 

Petitions,  popular,  and  the  referendum,  418- 
421. 

Plato,  influence  of,  in  American  colonies,  21. 

Platt,  Thomas  C.,  on  patronage,  337,  338;  on 
non-partisanship,  461-462. 

Polybius,  influence  of  in  American  colonies, 
21 ;  theory  of  government  of,  67. 

Popular  elections.    See  Elections,  popular. 

Pound,  Roscoe,  "Organization  of  Courts," 
347  n,  350  «;  "Liberty  of  Contract," 
368  n. 

Powell  v.  Pa.,  371. 

Powell,  T.  R.,  "Conclusiveness  of  Admin- 
istrative Determinations  in  the  Federal 
Government,"  383  n. 

Powers,  distribution  of,  by  federal  constitu- 
tion, 7-1 1 ;  division  of,  doctrine  of,  47- 
5ii  477>  m  original  states,  51-56,  69-70, 
73-74,  106,  109-110,  under  Socialist  plan, 
457-458,  under  Oregon  and  New  York 
plans,  471-472,  475-476,  conclusion  on, 
478;  state,  under  federal  constitution, 
12-17. 

Preferential  voting,  201 ;  under  Oregon  plan, 
465,  467  » ;  conclusion  on,  478. 

Primary,  legal  regulation  of,  103-104 ;  direct, 
development  of,  103,  working  of,  188-192 ; 
effect  of,  on  party  organization,  193-195, 
other  effects  of,  196-198;  non-partisan, 
198-200;  reform  of,  201-204;  conclusion 
on,  478. 

Principles  of  government,  in  original  states, 
summary  of,  70-72. 

Procedure,  legislative,  methods  of,  248-251, 
working  of,  261-263  ;  judicial,  352-355. 

Property,  special  privileges  for,  in  original 
states,  65-68. 

Proportional  representation,  in  Illinois,  138; 
proposed  by  Socialists,  455 ;  history  of,  in 
America,  456;  arguments  for,  458-459; 
criticism  of,  450-464 ;  under  Oregon  plan, 
465,  467,  475,  477. 

Public  opinion,  power  of,  34. 

Public  opinion  law,  adoption  of,  135 ;  work- 
ing of,  444. 

Quay,  Matthew  S.,  on  party  finance,  234. 

Rappard,  W.  E.,  "The  Initiative,  Referen- 
dum, and  Recall  in  Switzerland,"  136  n. 

Recall,  development  of,  136-137,  139;  work- 
ing of,  343-344;  of  judges,  375;  of 


496 


INDEX 


judicial  decisions,  375-376;  under  com- 
mission plan,  450;  under  Socialist  plan, 
455 ;  under  Oregon  plan,  465 ;  conclusion 
on,  476. 

Reeves,  History  of  English  Law,  30  n. 

Referendum,  constitutional,  in  original  states, 
58-60,  development  of,  95-99,  use  of,  402- 
403,  404-407,  working  of,  408-411,  con- 
clusion on,  415,  424-428;  legislative,  de- 
velopment of,  132-135 ;  popular,  definition 
of,  120-130,  use  of,  403,  404,  working  of, 
412-415,  improvement  of,  415-424,  conclu- 
sion on,  424-428,  457,  476,  477- 

Registration,  requirement  of,  87 ;  results  of, 
on  electorate,  146-150;  methods  of,  215- 
317. 

Reinsch,  P.  S.,  Readings  on  American  State 
Government,  250  n,  275  «,  277  n;  American 
Legislatures  and  Legislative  Methods,  255  n, 
330  n. 

Religion,  public  care  of,  in  original  states, 
27-28. 

Representation,  proportional.  See  Propor- 
tional representation. 

Reprieves,  power  of,  use  of,  392-393. 

Republic,  definition  of,  36-39;  function  of 
jury  in,  71-72. 

Revenues,  state,  310-315. 

Revolution,  right  of,  31-33. 

Rhode  Island,  admission  of,  to  Union,  4  n; 
religious  toleration  in,  27;  adoption  of 
original  constitution,  in,  41 ;  original  divi- 
sion of  powers  in,  53,  54 ;  recall  of  judges 
in,  61 ;  character  of  original  government 
of,  74 ;  extension  of  suffrage  in,  80 ;  con- 
stitutional convention  in,  93,  94,  98; 
advisory  opinions  in,  118  n;  legislative 
referendum  in,  133;  organization  of 
Republican  party  in,  174;  legislative 
apportionment  in,  247  «;  executive  veto 
in,  327 ;  procedure  for  constitutional 
amendment  in,  409. 

Rights,  natural,  doctrine  of,  22-24;  civil, 
reservation  of,  to  people,  42-44,  70. 

Roosevelt,  Theodore,  election  of,  181 ; 
Autobiography,  278  «;  on  invisible  gov- 
ernment, 337;  on  spoils  system,  339;  on 
patronage,  341 ;  on  recall  of  judicial  deci- 
sions, 375-376. 

Root,  Elihu,  on  the  treaty-making  power,  14 ; 
on  powers  of  constitutional  convention, 
128  «;  on  invisible  government,  186-187; 
on  legislative  procedure,  261. 

Rousseau,  influence  of,  in  American  colonies, 
21. 

Russell,  Governor,  on  the  lobby,  274-276. 

Secretary  of  state,  duties  of,  316. 


Short  ballot,  need  for,  900,  201,  903,  210  n, 
2ii  n,  212-213;  under  commission  plan, 
452;  under  Oregon  plan,  466;  under 
New  York  plan,  474;  conclusion  on,  477. 

Sidney,  influence  of,  in  American  colonies,  21. 

Slaughter-house  cases,  361. 

Slavery,  attitude  toward,  in  original  states, 
35. 

Smith,  Adam,  influence  of,  in  America,  348. 

Smith,  Alfred  E.,  on  legislative  procedure, 
261. 

Smith,  J.  A.,  The  Spirit  of  American  Govern- 
ment, 55  n. 

Smyth  v.  Ames,  364. 

Socialist  Party,  organization  of,  172-173; 
test  of  party  affiliation  of,  175;  plan  for 
reform  of  state  government  of,  455-464. 

Socialist  Labor  Party,  on  reform  of  govern- 
ment, 455. 

South  Carolina,  established  church  in,  37; 
adoption  of  original  constitution  in,  40  n, 
41  »;  property  qualifications  for  office 
holders  in,  47 ;  original  division  of  powers 
in,  54 ;  special  privileges  for  property  in, 
66,  68 ;  reform  of  bicameral  system  in,  88 ; 
tenure  of  judges  in,  91 ;  constitutional 
referendum  in,  97  n ;  constitutional  amend- 
ment in,  98,  99 ;  popular  voting  in,  144 ; 
party  organization  in,  170;  organization 
of  Democratic  party  in,  174;  operation  of 
direct  primary  in,  189;  gerrymander  in, 
246 ;  illiteracy  in,  290. 

South  Dakota,  alien  suffrage  in,  85  n; 
advisory  opinions  in,  118  n ;  initiative  and 
referendum  in,  136;  working  of  popular 
referendum  in,  414 ;  emergency  legislation 
in,  416,  417. 

Sovereignty,  national,  meaning  of,  4,  7 ; 
popular,  28-30. 

Speakership,  power  of,  252—253,  259,  260-261. 

Spoils  system,  282,  284,  336,  339. 

Standard  Oil  case,  365. 

State,  definition  of,  3. 

States,  new,  admission  of,  8 ;  as  instruments 
of  national  government,  9 ;  obligations  of, 
to  one  another,  10 ;  obligations  of  national 
government  to,  j  i ;  powers  of,  under 
federal  constitution,  12-17;  importance 
of,  17-18;  original  types  of  government 
in,  73- 

Steffens,  Lincoln,  The  Shame  of  the  Cities, 
272  n. 

Straus,  Oscar  S.,  Origin  of  the  Republican 
Form  of  Government  in  the  United  States, 
21  n. 

Suffrage,  electoral,  in  original  states,  44-46, 
73;  present  qualifications  for,  87;  effect 
of,  on  character  of  government,  150-152; 


INDEX 


497 


qualifications  for,  theory  of,  155-158; 
alien,  83 ;  manhood,  70-81 ;  negro,  80-82 ; 
disfranchisement  of  negroes  in  spite  of, 
145,  147-148;  woman,  37,  46,  85-87, 
effect  of,  on  electorate,  144-145,  on  char- 
acter of  government,  152-154,  present 
status  of,  456. 

Sulzer,  Governor,  impeachment  of,  343. 

Sumner,  Helen  L.,  on  equal  suffrage  in 
Colorado,  154. 

Switzerland,  initiative,  referendum,  and 
recall  in,  136;  constitutional  convention 
in,  400;  proportional  representation  in, 
456. 

Taft,  W.  H.,  "Recent  Criticisms  of  the 
Federal  Judiciary,"  378  n;  on  economy 
and  efficiency,  472. 

Tammany,  political  influence  of,  236. 

Taxation,  administration  of,  310-315,  323. 

Tennessee,  doctrine  of  non-resistance  in,  33 ; 
manhood  suffrage  in,  80 ;  popular  election 
of  governor  in,  go ;  executive  veto  in,  1 1 1 ; 
unconstitutional  laws  in,  358. 

Texas,  admission  of,  to  Union,  4  n;  alien 
suffrage  in,  85  n. 

Thayer,  J.  B.,  Cases  on  Constitutional  Law, 
44  n;  "The  Origin  and  Scope  of  the 
American  Doctrine  of  Constitutional 
Law,"  63  n;  Legal  Essays,  118  n. 

Tiedeman,  G.  C.,  The  Unwritten  Constitution 
of  the  United  States,  63  n,  71  «. 

Tocqueville,  de,  on  trial  by  jury,  72,  354; 
on  the  party  system,  100;  Democracy  in 
America,  116  »,  118  n;  on  American 
parties,  208;  on  judicial  control  of  ad- 
ministration, 283,  284. 

Toleration,  religious,  in  American  colonies,  27. 

Treasurer,  state,  duties  of,  316. 

Tucker,  St.  G.,  Commentaries  on  Blackstone, 
72  n. 

Tweed,  "Boss,"  on  conduct  of  elections,  213. 

Unicameral  legislature,  in  original  states,  66 ; 

working  of,  75 ;   abandonment  of,  88-89 ; 

proposals  for,  400,  453,   455,  466,  474; 

conclusion  on,  478. 
Union,  nature  of,  4-6. 
U'Ren,  W.  S.,  on  the  commission  plan,  453 ; 

on  Oregon  plan,  465. 
Utah,  polygamy  in,  9;   woman  suffrage  in, 

87  n;    popular  voting  in,  144. 

Vermont,  admission  of,  to  Union,  4  n; 
emancipation  of  slaves  in,  26;  original 
right  to  vote  in,  45 ;  council  of  censors  in, 
58 ;  unicameral  legislature  in,  66 ;  charac- 
ter of  original  government  of,  73;  aboli- 


tion of  council  of  censors  in,  77 ;  manhood 
suffrage  in,  80;  listing  of  voters  in,  215; 
legislative  organization  in,  242  n,  244; 
public  health  administration  in,  209 ; 
procedure  for  constitutional  amendment 
in,  409. 

Veto,  executive,  in  original  states,  52,  55, 
development  of,  110-114,  present  use  of, 
327-330,  conclusion  on,  457,  475,  479; 
judicial,  origin  of,  62-63,  development  of, 
114—116,  exercise  of,  by  jury,  116-118, 
sources  of,  355-356,  use  of,  356-358,  effect 
of,  350-360,  362-367,  criticism  of,  368- 
372,  on  account  of  defects  in  legislative 
procedure,  372-374,  reform  of,  374~377; 
conclusion  on,  380,  391,  457,  476;  pop- 
ular. See  Referendum. 

Virginia,  attitude  toward  slavery  in.  at 
Revolution,  26;  established  church  in,  27; 
abolition  of  religious  tests  in,  27 ;  adop- 
tion of  original  constitution  in,  40;  orig- 
inal right  to  vote  in,  44 ;  original  division  of 
powers  in,  54 ;  original  legislative  suprem- 
acy in,  73 ;  extension  of  suffrage  in,  80 ; 
popular  election  of  governor  in,  oo; 
popular  election  of  judges  in,  91 ;  con- 
stitutional conventions  in,  96;  constitu- 
tional referendum  in,  97  n;  working  of 
legislative  supremacy  in,  107;  length  of 
original  constitution  of,  124;  status  of 
constitutional  convention  in,  128;  regis- 
tered voters  in,  147;  operation  of  direct 
primary  in,  189;  corporation  commission 
in,  307. 

Vote,  right  to.    See  Suffrage. 

Wallas,  Graham,  Human  Nature  in  Politics, 
150  n,  220  n;  on  partisanship,  463. 

Walsh,  C.  M.,  The  Political  Science  of  John 
Adams,  38  n,  65  n,  68  n. 

Washington,  literacy  test  in,  85  n;  woman 
suffrage  in,  87  n ;  strengthening  of  execu- 
tive veto  in,  113;  popular  voting  in,  144. 

Washington,  on  the  party  system,  99. 

West  Virginia,  executive  veto  in,  112. 

Weyl,  W.  E.,  The  New  Democracy,  286  n. 

White,  W.  A.,  The  Old  Order  Changeth,  286  n. 

Whitlock,  Brand,  On  the  Enforcement  of 
Law  in  Cities,  35  n. 

Wigmore,  J.  H.,  The  Australian  Ballot,  208  n. 

Wilson,  James,  on  republican  form  of  govern- 
ment, 39  n. 

Wilson,  Woodrow,  election  of,  181 ;  on  legis- 
lative committees,  258-259,  263 ;  on 
legislative  procedure,  266;  on  cabinet 
system,  469. 

Wisconsin,  direct  primary  in,  103 ;  official 
campaign  bulletin  in,  104,  238;  operation 


2K 


498 


INDEX 


of  direct  primary  in,  188;  corrupt  prac- 
tices act  of,  231-232;  anti-lobby  act  of, 
276;  labor  law  administration  in,  301; 
state  life  insurance  in,  306;  regulation  of 
public  utilities  in,  307 ;  tax  reform  in, 
312-313;  state  tax  commission  in,  315, 
321 ;  state  industrial  commission  in,  324; 
administrative  reorganization  in,  326  n; 
appropriations  in,  331 ;  civil  service  re- 
form in,  340  n;  proposed  procedure  for 
direct  legislation  in,  438,  443. 


Wise,  John,  Vindication  of  the  Government 
of  New  England  Churches,  21  n. 

Woolsey,  Theodore,  Political  Science,  150  n. 

Works,  public,  administration  of,  303-304. 

Wyman,  Bruce,  "Jurisdictional  Limitations 
upon  Commission  Action, "  388  n. 

Wynehamer  v.  The  People,  361. 

Wyoming,  literacy  test  in,  85  n;  woman 
suffrage  in,  86-87;  limitation  of  legisla- 
tive powers  in,  122;  popular  voting  in, 
144- 


Printed  in  the  United  States  of  America. 


Date  Due 


w 


FEB  2 


1963 


Library  Bureau  Cat.  No.  1137 


JBRAflV  FACILITY 


"  >     i    ii     ii       I    II  I    I  I    II    I     1 1| 

A     001  012  841 


